Commodity Groups Attempt End Run Around Courts in Checkoff Battle

In an attempt to influence the outcome of pending litigation over the nation’s commodity checkoff programs, 15 agricultural trade associations (claiming to represent farmers’ "interests") recently sent a letter to the House-Senate Conference Committee working on the 2002 Farm Bill, urging it to slip in language that would declare all checkoff-related advertising as "government speech."

The twelve largest agricultural commodity promotion boards, many of whose interests are conveniently represented by groups who signed the letter, spend roughly $700 million a year of farmers’ and ranchers’ money on mandatory "generic" advertising programs that may violate the Constitution. Just as the First Amendment protects an individual’s right to free speech, it also protects his or her right not to speak.

On June 25, 2001, the U.S. Supreme Court, in United States v. United Foods, declared the mushroom checkoff unconstitutional. Absent from the government’s briefs before the lower courts was the notion that mandatory commodity promotions programs are government speech. It was only before the Supreme Court that the government first raised the novel question of whether such programs would be constitutional if construed as an extension of the government’s own speech.

"Sounds good to us, let’s go with it," the government must have been thinking. Although the Court did not rule on the government speech argument, that hasn’t stopped the government from parading around its favorite new theory in defense of other checkoff programs. In fact, the government is even using it to go back after United Foods. However, the commodity boards must be questioning the strength of that argument if they’re begging Congress to belatedly slip language into the Farm Bill to support their newfound position.

Ultimately, it will be up to the courts to decide the issue, and a few stealthily-crafted paragraphs in the Farm Bill will matter little when they do, but with $700 million on the line, why take any chances? Of course the commodity boards may have difficulty explaining why the checkoff programs have always been billed as "producer funded, producer driven," self-help programs. Details, details.

In United States v. Charters, a family of independent beef ranchers and the Center argue that the beef checkoff is identical to the mushroom checkoff in its unconstitutionality. The only significant question for the court is the government speech issue. We believe commodity checkoff programs are not government speech. Yet, even were the speech viewed as government speech, such speech would still be subject to the same First Amendment protections as mandatory support for third-party speech.

To read a copy of the Center’s letter to the House-Senate Conference Committee refuting the disingenuous efforts of the agricultural trade associations, click here.

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