AFF Sentinel Vol.2, #29

What Was Behind the Majority Opinion?

The first reactions for most cattlemen after the Supreme Court's favorable ruling on the constitutionality of the beef checkoff were happiness and relief. And most working cattlemen have not had the time to read the pages and pages of Supreme Court opinions.

But there are two aspects of the situation that need further study so we've done some homework for you. It is important to understand why the Court ruled as it did for two reasons: 1) So you can understand yourself and intelligently explain to checkoff opponents why the ruling came down as it did; and 2) so you can understand what issues are left that the checkoff opponents might use to wreck the system yet. We address the first in this edition and the second in the next editions of the Sentinel.

The opinion for the 6-3 majority was written by Justice Scalia, and while the opinion is thorough and explains the Court's position in detail, the line of reasoning is pretty clear.

In the preliminary background, the Court noted that Congress authorized the checkoff program and that the program was temporary until voted in by cattlemen as permanent by a "large majority" in a referendum.

The Court's opinion rested on two questions: 1) Are ads and materials put out by the Cattlemen's Beef Board government speech? and 2) do citizens have the right to not pay for government speech with which they do not agree?

On the latter point, the Court quoted past opinion: "Compelled support of government" - even those programs of government one does not approve - is, of course, perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position.

"The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle, it seems inevitable that funds raised by the government will be spent for speech and other expressions to advocate and defend its own policies."

Later in the opinion, the Court answered contentions that government speech protections do not apply because it is funded by a targeted assessment on beef producers rather than by general revenues. The Court said that it makes no difference whether the funds are raised by general taxes or targeted assessments. Citizens have, "no First Amendment right not to fund government speech."

As for the government speech question, the Court took into consideration the facts that cattlemen make up the Beef Board; that the Secretary appoints the Beef Board and half of the Operating Committee; that all members of both are subject to removal by the Secretary; and that non- government inputs go into the messages. As Scalia noted, "The Secretary of Agriculture does not write ad copy himself." The key is that Congress authorized the program and "Congress and the Secretary have set out the overarching message and some of its elements and they have left the development of the remaining details to an entity whose members are answerable to the Secretary (and in some cases appointed by him as well.)" Ultimately, as is elsewhere noted, everyone must answer to Congress.

So while cattlemen make decisions and those hired by cattlemen do the bulk of the grunt work, the government makes sure everything put out meets the law's requirements. The Court said, "...the Secretary exercises final approval authority over every word used in every promotional campaign," and USDA officials, "attend and participate in the open meetings at which proposals are developed."

For those of you wondering about the mushroom case, the majority opinion referred to that case as similar but different. The mushroom group did not have the kind of structure and was not subject to the kind of government final approval as the beef checkoff. In that way, the mushroom checkoff became compelled government subsidy of private speech and was disallowed.

The majority opinion also responded to contentions that the government is contradicting itself if the checkoff promotes beef consumption and other government polices discourage consumption of animal fats.

"Even if we agreed that the protection of the government-speech doctrine must be forfeited whenever there is inconsistency in the message, we would nonetheless accord the protection here. The beef promotions are perfectly compatible with the [dietary] guidelines' message of moderate consumption - the ads do not insist that beef is also, 'What's for Breakfast, Lunch and Midnight Snack.'"

It would seem that the beef checkoff, carefully crafted to suit the needs of cattlemen as much as possible, yet with the level of government supervision necessary to make the checkoff the mandatory program cattlemen wanted, was pretty well done. And while I like my beef medium, I do like my compromises well done.

Editor's Note: News reports have indicated that the Supreme Court has sent both the dairy and pork checkoff challenge cases back to their respective lower courts, instructing them to review the cases in light of the beef case decision. As expected, the results of the beef case will shape, and probably save, many other commodity checkoff programs - a victory for agriculture!

Next time: The dissenting opinions and possible challenges to consider.

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