The question of the constitutionality of the national beef checkoff moved one step closer to resolution in early March. On March 10, attorneys for both sides presented oral arguments before a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Paul, MN.
On one side, two attorneys — Doug Letter, a U.S. Department of Justice attorney representing USDA, and John Roberts, representing the Nebraska Cattlemen and two South Dakota producers — argued that the checkoff program is government speech. Making that case is critical in countering the opposition's contention that the checkoff is not government speech, and thus compelling producers to participate is a violation of the Constitution's First Amendment guarantees of rights to free speech and association.
Letter argued that the beef checkoff program is government speech because the mandatory beef checkoff is a federal program enacted by Congress and administered by the U.S. Secretary of Agriculture. In addition to making and revoking appointments to the Cattlemen's Beef Board (CBB) — the 100-member body of checkoff payers that decides on the allocation of checkoff funds and program direction — the Secretary of Agriculture also gives final approval to all CBB checkoff expenditures, as well as approving the content of promotion and advertising campaigns funded through the checkoff.
During the proceedings, the beef checkoff program was likened to a government recruitment campaign such as “Join the Navy and see the world.” Pacifists who disagree with the campaign can't file First Amendment challenges against it. In such a scenario, violation of First Amendment rights would only occur if the government forced citizens to display campaign posters or stickers on their personal property.
Meanwhile, Philip Olsson, the attorney representing the Livestock Marketing Association (LMA) and the Western Organization of Resource Councils, argued that the proposal for a mandatory checkoff program originated from the beef industry. And while USDA does oversee the program, Olsson characterized his opposition's government speech contention as “trying to turn a kiss into a proposal of marriage.”
Olsson argued that, while the beef checkoff is a sanctioned government program and USDA does sign off on program specifics, USDA's role is more of a rubber stamp. The pro-checkoff attorneys countered that, in fact, a USDA representative attends checkoff meetings. And, in the past, the USDA Secretary has removed members from the CBB for substandard performance and denied at least one beef promotion campaign submitted by the CBB for final USDA approval.
Following presentation of the oral arguments, Monte Reese, CBB's chief operating officer, told BEEF magazine that he was pleased with the morning's proceedings and “cautiously optimistic” that the judges would find in favor of USDA and the checkoff.
“Fundamentally, if the checkoff program isn't overseen by the federal government, then why did LMA sue USDA?” Reese asked. “This is a producer-funded program made mandatory through an act of Congress and supervised by USDA. The very first budget, the very first project the Operating Committee agreed to fund, the very first contract we entered into to, USDA had to approve all of them and everything since. You can't have a mandatory assessment funding a program without the authority of the federal government backing it up. And you're not going to get that authority without governmental oversight.”
The St. Paul proceedings are the latest action in the appeal of a ruling made last July in South Dakota by U.S. District Court Judge Harold Kornmann. Kornmann ruled the beef checkoff was unconstitutional under the First Amendment and enjoined the CBB from further collections. However, a stay was granted a few days later and collections have continued.
Checkoff opponents are against the checkoff's generic promotion of beef, which doesn't differentiate between domestically produced beef and imports. They say producers shouldn't be forced to pay into the program, citing freedom of speech and association under the First Amendment. Checkoff proponents, of course, argue that the beef checkoff is government speech and thus doesn't fall under the First Amendment.
A ruling on this latest court proceedings in St. Paul isn't expected for two to six months, Reese says. Following that, it's likely the loser will appeal the verdict. Final resolution is expected to take place at the hands of the U.S. Supreme Court, which could be a few years away.