E-mail this article to
yourself or a friend.
Enter address:


Beef checkoff unconstitutional, say groups

(Sunday, Oct. 24, 2004 -- CropChoice news) -- Two beef checkoff news items
1.Livestock Marketing Association: Producer-funded and run beef checkoff not ‘government speech,’ and is unconstitutional, LMA tells U.S. Supreme Court
2. Campaign for Family Farms, joined by farm groups from across the country, files friend of court brief supporting termination of unconstitutional mandatory beef checkoff

1. Producer-funded and run beef checkoff not ‘government speech,’ and is unconstitutional, LMA tells U.S. Supreme Court

John J. McBride, Director of Information

Oct. 18, 2004 -- The national mandatory beef checkoff is funded by, credited to, and run by beef producers, not the federal government. It therefore is not “government speech,” and must be struck down as unconstitutional, Livestock Marketing Association recently told the U.S. Supreme Court.

LMA’s brief, filed with the Court, asked it to affirm a 2003 ruling by the Eight Federal Circuit Court of Appeals. The Appeals Court found the checkoff was not government speech, and therefore violated producers’ First Amendment rights of free speech and association.

In its ruling, the Eighth Circuit upheld a similar decision, issued in 2002 by the federal district court in South Dakota.

The Supreme Court will hear oral arguments in the case December 8. A decision is expected next year in the seven-year battle over the mandatory, $1 per head fee paid by cattle producers.

LMA’s brief strongly countered the defendants’ argument that the checkoff is government speech. “The beef promotion program is funded not from Congressional appropriations, but by mandatory payments that all members of the beef industry must make to their respective state beef industry associations,” it said. In fact, the brief noted, the Supreme Court has “never recognized a government speech defense” unless the speech in question was funded by taxpayers.

Furthermore, the program is not government speech because the government’s control over the program is minimal. The U.S. Department of Agriculture “loosely oversees compliance with the (Beef Act’s) conditions, but it does not initiate, create, devise, compose, fund or implement any of the Board’s activities,” the brief, filed Oct. 15, noted.

The program itself is run by the Cattlemen’s Beef Board, whose members are “private industry representatives approved in slate fashion by the Secretary (of Agriculture); the Operating Committee, the entity directly responsible for selecting the (program’s) messages, is evenly divided between Beef Board members and members of the National Cattlemen’s Beef Association, over whose appointment USDA has no discretion.

“More to the point,” the brief continued, the Beef Board “represents itself as being entirely industry-controlled.” Its publications describe it as a “’producer-controlled independent Board,’” and the beef checkoff as an “’industry-run program,’ run by and accountable to cattlemen.”

That representation not only shows the checkoff is not a government program, “but also bears heavily on one of the most important factors affecting the applicability of any ‘government speech’ defense,” LMA’s brief said, “whether the speech would likely be attributed to the government or indeed to the private persons who are forced to pay for it.”

There’s no question that the latter is the case, the brief said, because the Beef Board uses the credit line, “emblazoned across each television and print advertisement,” that the ads “‘are funded by America’s Beef Producers.’”

The ads also bear the copyright of NCBA and the Beef Board, and the government is not mentioned, the brief noted.

LMA’s case will be argued before the Supreme Court by Laurence H. Tribe, professor of constitutional law at Harvard Law School. Professor Tribe successfully argued the Supreme Court case that struck down the mushroom checkoff as unconstitutional. This decision has provided the controlling legal precedent for LMA’s lower court victories.

LMA’s position was supported in seven “friend of the court” briefs filed by more than 70 farm and ranch organizations, including the National Farmers Union (NFU); several state Farmers Union organizations; the Campaign for Family Farms, agribusinesses, agriculture commodity importers and the Washington Legal Foundation.

2. Campaign for Family Farms, joined by farm groups from across the country, files friend of court brief supporting termination of unconstitutional mandatory beef checkoff

Campaign for Family Farms
Fighting for family farmers, rural communities and the environment
c/o Land Stewardship Project, 2919 E. 42 nd Street, Minneapolis, MN 55406 Ph: 612/722-6377 www.landstewardshipproject.org

Contacts: Land Stewardship Project, (612) 722-6377
Missouri Rural Crisis Center, (573) 449-1336
Iowa Citizens for Community Improvement, (515) 282-0484
Citizens Action Coalition of Indiana, (317) 423-7108
Illinois Stewardship Alliance, (217) 498-9707
Farmers’ Legal Action Group, (651) 223-5400

10/18/04 WASHINGTON, D.C. – The Campaign for Family Farms (CFF), joined by 49 farm groups with members in all 50 states, filed an amici curiae (friend of the court) brief with the U.S. Supreme Court today asking the high court to uphold lower court decisions that found the mandatory beef checkoff unconstitutional and terminated the program. The Supreme Court’s decision will likely decide the future of many unpopular checkoff programs, including the mandatory pork checkoff.

Disregarding lower court rulings on the pork and beef checkoff, the Bush Administration opted to petition the Supreme Court on the constitutionality of mandatory checkoffs. By pursuing every legal option to preserve both the mandatory pork and beef checkoffs, the Bush Administration has forced farmers to continue paying the non-refundable assessments.

If the Bush Administration had not appealed these cases, the mandatory pork and beef checkoffs would have ended years ago.

“President Bush keeps telling us he’s against taxes, but these mandatory checkoffs keep rolling along, propped up by this drawn out legal battle being waged by his administration,” said Jim Joens, a Wilmont, Minn., hog farmer and CFF spokesperson.

Joens is part of a lawsuit brought by independent family farmers and the CFF to end the mandatory pork checkoff. Farmers initiated the lawsuit when the Bush Administration cut a backroom deal with the National Pork Producers Council to continue the program after a nationwide referendum of hog farmers voted to terminate the fee. Hog farmers have paid approximately $187 million into the pork checkoff since Secretary of Agriculture Glickman announced the results of the referendum in January of 2001.

“We fully support the beef checkoff challenge,” said Rhodes Iowa farmer Larry Ginter, a CFF spokesperson. “At the request of the Bush Administration, the Supreme Court decided not to hear hog farmers’ legal challenge to the checkoff, but through the amici brief we are adding our voices to support independent cattle farmers and ranchers in this important case.” The Western Organization of Resource Councils and the Livestock Marketing Association today filed briefs with the U.S. Supreme Court opposing the mandatory beef checkoff.

In 2002, U.S. District Judge Charles Kornmann ruled the beef checkoff violated cattle producers’ First Amendment rights by compelling them to pay for speech with which they disagreed. In 2003, the 8 th Circuit Court of Appeals affirmed Judge Kornmann’s decision. In February 2004 the Bush Administration asked the Supreme Court to review the decision; in May, the Court agreed.

Independent hog farmers and the Campaign for Family Farms began their challenge to the mandatory pork checkoff in 1998, when the CFF initiated a national petition drive calling for a hog farmer referendum to decide if the program should be ended. That led to a vote conducted by the USDA in August-September 2000 in which over 30,000 U.S. hog producers voted 53 percent to 47 percent to terminate the mandatory pork checkoff. Following the announcement of the vote results in January 2001, the then U.S. Secretary of Agriculture Dan Glickman ordered the termination of the program.

However, in a move that outraged hog farmers around the country, newly appointed Secretary of Agriculture Ann Veneman cut a backroom deal with the National Pork Producers Council in February 2001, which led to the throwing out of the results of the democratic vote, forcing hog farmers to continue paying into the checkoff program. This action led to CFF’s lawsuit against the USDA, which specifically claimed the mandatory pork checkoff violates hog producers’ constitutional rights by infringing on the First Amendment.

In ruling the pork checkoff unconstitutional in October 2003, the Sixth Circuit Court found that the pork checkoff “compels [hog farmers] to express a message with which they do not agree,” and struck down the entire Pork Act. Federal District Court Judge Richard Enslen ruled in October 2002 that the pork checkoff forces hog farmers to pay into a program that they believe is contrary to their interests because it supports factory-style hog production and corporate control of the industry. The checkoff, therefore, is “unconstitutional and rotten,” Judge Enslen ruled.

“Independent livestock farmers and ranchers have a very strong case,” said Susan Stokes, legal director for Farmers’ Legal Action Group and attorney for the CFF. “With four unanimous lower court rulings, we are confident that justice will prevail and both the pork and beef mandatory checkoffs will be terminated soon.”

The Supreme Court will hear oral arguments on the mandatory beef checkoff on December 8, with a decision in early 2005.


The amici brief and other documents related to the pork checkoff case can be viewed at: http://www.flaginc.org/news/Checkoff/checkoff.htm

The Campaign for Family Farms is a coalition of farm and rural groups leading the fight against the corporate takeover of the hog industry and working for policies supporting independent family farmers.

CFFE members groups include:

  • Missouri Rural Crisis Center,
  • The Land Stewardship Project (MN),
  • Iowa Citizens for Community Improvement, Citizens Action Coalition of Indiana, and the
  • Illinois Stewardship Alliance.

Farmers’ Legal Action Group (FLAG) represents CFF and the individual hog farmers in the checkoff lawsuit.