The Other Unconstitutional Checkoff
A federal judge
in Michigan declared another of the nation's agricultural commodity
promotion programs unconstitutional in an order issued October 25.
The order struck down portions of the federal Pork Production, Research
and Consumer Education Act of 1985, which created the pork checkoff
program authorizing the collection of mandatory assessments on pork
producers that pay for generic advertising, such as the campaign
touting "Pork: The Other White Meat."
Michigan Pork Producers v. Campaign for Family Farms, Federal
District Judge Richard Alan Enslen declared the pork checkoff "unconstitutional
since it violates [pork producers'] rights of free speech and association."
Enslen's order gives the U.S. Department of Agriculture (USDA) and
proponents of the pork checkoff 30 days in which to seek a stay
from the U.S. Court of Appeals for the 6th Circuit. After that date,
absent appellate intervention, the order enjoins the collection
of pork checkoff assessments and the continued operation of the
decision spells further trouble for the nation's embattled agricultural
commodity promotion programs. Last year, the U.S. Supreme Court
ruled in United States v. United Foods that the mushroom
checkoff violates the First Amendment rights of mushroom growers,
stating "[i]f the First Amendment means anything, it means that
compelling speech must be the last and not the first strategy considered
by the government." Following that decision, a federal judge
in South Dakota struck down the Beef Act, responsible for the beef
checkoff and messages such as: "Beef. It's What's for Dinner."
has been the case with both the mushroom and beef checkoffs, the
government is not likely to throw in the towel over the latest decision
from Judge Enslen.
the U.S. Supreme Court's ruling on the matter, mushroom producer
United Foods, Inc., was forced back into court by the government
to once again argue the constitutionality of the Mushroom Act based
on a novel "government speech" theory, now rejected by two courts
in the beef and pork cases. And, the government has requested and
been granted a stay of the beef decision pending appeal, meaning
"unconstitutional" checkoff assessments can continue to be collected
from the nation's beef producers.
for the pork checkoff, it was originally subject to termination
after a majority of pork producers voted against the program in
a nationwide referendum held in 2000. Nevertheless, checkoff proponents
prevented the democratic termination of the program by filing a
lawsuit contesting the outcome of the vote.
Veneman, who succeeded Dan Glickman as Secretary of the USDA shortly
after the suit was filed, sought to settle the issue by agreeing
to more stringent oversight of the checkoff in return for allowing
the program to continue. However, the lawsuit proceeded as opponents
of the program filed claims contesting the Secretary's ability to
override the referendum and challenging the program's constitutionality
under the First Amendment based on the United Foods decision.
producers have now voted down the checkoff program by popular vote
and won a court ruling declaring the program unconstitutional.
However, the twelve largest commodity promotion boards, of which
pork is one, collect more than $700 million per year of farmers'
hard-earned money for so-called "generic" collective advertising
programs. Unfortunately, that seems to be far too much money for
the government to ever accede to the producers', or the courts',
opinions on the matter.
for checkoff proponents and the USDA to seek a stay, preserving
nearly $50 million in annual pork checkoff assessments for as long
as possible, while they appeal Judge Enslen's order.
separate ruling on the constitutionality of the beef checkoff is
expected soon in a case filed in the federal district court in Billings,
Montana, by independent cattle ranchers Steve and Jeanne Charter,
in conjunction with the Center for Individual Freedom. In addition,
a lawsuit challenging the constitutionality of the dairy checkoff,
filed on behalf of Joe and Brenda Cochran, with assistance from
the Center for Individual Freedom, is underway in the federal district
court in Scranton, Pennsylvania.
read more on those cases and the battle over the nation's checkoff
October 31, 2002]