AFF Sentinel Vol.2, #31

This edition and a following one examines the Supreme Court's dissenting opinions regarding the beef check off case, as well as the majority opinion's answer to the dissent. We also look at other possible avenues opponents might explore.

The primary dissenting opinion, written by Justice Souter, primarily takes issue with whether government speech has to carry specific attribution from the government, i.e. does an ad have to have the government's name on it? The majority opinion notes pointedly that the dissent, "cites no prior practice, no precedent and no authority for this highly refined elaboration - not even anyone before who had ever thought of it. It is more than we think can be found within, `Congress shall make no law... abridging the freedom of speech.'"

The majority opinion comes at the issue again from a little different angle and further lays out the case against the need for specific government attribution. Government speech must be subject to some kind of political accountability or democratic safeguards. The majority opinion noted that the program and general intent is prescribed by federal statute; notice and comment precede regulations; the Secretary - "a politically accountable official" - oversees the program and Congress, "retains oversight authority, not to mention the ability to reform the program at any time. No more is required."

Given that kind of firm majority statement, it would appear the attribution question is not a big issue.

Not specifically addressed in the Supreme Court decision was the charge that the "Board impermissibly used check off funds to send communications supportive of the beef program to beef producers."

While reporting to the cattlemen putting up the money what the program was doing would seem to be a common sense requirement, the opponents made reporting to constituents sound like a crime.

We asked Monte Reese, Beef Board CEO, about the disputed producer communications. The suit had charged that those feedback ads lobbied producers to not sign the LMA's referendum petitions. Reese said the ads never even mentioned the petitions. Some of the ads mentioned that the check off is fair because everybody pays and that producers make the decisions. The LMA read anti-petition lobbying into those statements.

But the justices did provide guidance in this area. The majority opinion refers to the need for any government program to be subject to oversight of elected officials and/or some form of political responsiveness. Our question is how could citizens properly judge a program about which they are prohibited from receiving performance information? In addition, the Court noted that it has in the past upheld the right of teachers unions and state bar associations to require all members to pay dues with one exception. The only part they cannot require them to pay is that portion which is used for political activity. Of course, that is an area the check off does not deal with at all by law anyway.

Most telling, the Court cited past rulings that, "... it seems inevitable that funds raised by the government will be spent for speech and other expressions to advocate and defend its own policies." Both the majority and Souter's dissenting opinion cited this clause.

So it would seem this avenue would not lend itself to successful attack by check off opponents.

Next time: Final contentions and avenues.

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