"When I prevailed in the mushroom checkoff case, when the Supreme Court held that producers could not be compelled to promote generic ads, it seemed beef would be next in line," he said after expressing his "disappointment."

--Laurence Tribe, Havard Law School professor

"The message set out in the beef promotions is from beginning to end the message established by the Federal Government," Justice Antonin Scalia wrote in explaining his vote in favor of the checkoff's sustenance. "Congress has directed the implementation of a 'coordinated program' of promotion, 'including paid advertising, to advance the image and desirability of beef and beef products.'

By Jeff Caldwell

The justices of the U.S. Supreme Court have spoken. The beef checkoff program will continue.

On May 23, the court voted 6-3 in favor of the checkoff program's status as "government speech." As a result, the framework for research, development and advertising funding is exempt from challenges based on alleged First Amendment rights violations.

"The message set out in the beef promotions is from beginning to end the message established by the Federal Government," Justice Antonin Scalia wrote in explaining his vote in favor of the checkoff's sustenance. "Congress has directed the implementation of a 'coordinated program' of promotion, 'including paid advertising, to advance the image and desirability of beef and beef products.'

"Moreover, the record demonstrates that the Secretary (of Agriculture) exercises final approval authority over every word used in every promotional campaign," Justice Scalia continued. Scalia was joined in opinion by Chief Justice William H. Rehnquist, Justices Sandra Day O'Connor, Clarence Thomas, Stephen G. Breyer and Ruth Bader Ginsberg.

One point of order opponents to the checkoff program utilized in arguments against it was the false representation of the entire body of beef producers in the U.S. In other words, the National Cattlemen's Beef Promotion and Research Board, the body charged with utilizing the $1-per-head checkoff funds, was not all-inclusive. Scalia pointed out this reasoning did not apply in the case of the beef checkoff.

"(Respondents) contend that crediting the advertising to 'America's Beef Producers' impermissibly uses not only their money but also their seeming endorsement to promote a message with which they do not agree..." Scalia wrote. "Whether the individual respondents who are beef producers would be associated with speech labeled as coming from 'America's Beef Producers' is a question on which the trial record is altogether silent. We have only the funding tagline itself, a trademarked term that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad."

In dissenting the Supreme Court's decision, Justice David Souter, who was joined in his opinion by Justices John Paul Stevens and Anthony Kennedy, called the denotation of the beef checkoff program as "government speech" an act undertaken "unwisely." As government speech, the laxly overseen government-sanctioned program that requires industry members to contribute financially is dangerously without check or balance in the legislative framework.

"The error is not that government speech can never justify compelling a subsidy, but that a compelled subsidy should not be justifiable by speech unless the government must put that speech forward as its own," Souter wrote. "Otherwise there is no check whatever on government's power to compel special speech subsidies...

"I take the view that if government relies on the government-speech doctrine to compel specific groups to fund speech with targeted taxes, it must make itself politically accountable by indicating that the content actually is a government message, not just the statement of one self-interested group the government is currently willing to invest with power," Souter continued.

Monitoring needed

The accountability for monitoring the content of checkoff-funded statements through advertising, like the "Beef: It's What's For Dinner" campaign, is a point officials with the Livestock Marketing Association say must be vigorously enforced after the Supreme Court's decision. LMA was one of the strongest opponents of the beef checkoff, being the lead plaintiff in the primary case against the program.

"We are certain that many producers will be surprised by the Court's ruling that the checkoff is government speech, and controlled by the government," said LMA communications director John McBride, reading a statement by LMA president Randy Patterson a few hours after court's decision. "This was not the way the program has been, and is now promoted to producers. Given the Court's acceptance of the government speech argument, we expect greater supervision by the government of the checkoff, and a greater effort by USDA to address the concerns of the producers and marketers that led to our initial referendum campaign, and our constitutional challenge."

The leader of the governmental arm whose job it is to oversee the execution of beef checkoff funds, Secretary of Agriculture Mike Johanns, pointed to the checkoff's importance to producers in applauding the Supreme Court's decision.

"I am extremely pleased that the U.S. Supreme Court overturned the lower courts' decisions and ruled in favor of the Beef Checkoff Program," Johanns said May 23. "This is certainly a win for the many producers who recognize the power of pooled resources. As this administration has always contended, USDA regards such programs, when properly administered, as effective tools for market enhancement."

The Agricultural Marketing Service is the specific sector of the U.S. Department of Agriculture charged with oversight and monitoring of Beef Board's administration of the checkoff.

Decision questioned

The Supreme Court's actual 6-3 vote was another issue the true legitimacy of which was challenged by LMA after the ruling was handed down. According to Laurence Tribe, Havard Law School professor and attorney who argued LMA's case challenging the checkoff last year, the 6-3 vote didn't truly reflect the justices' feelings on the issue, but rather was reached as a settlement. The vote was actually closer than it appeared, he said, and it will have long-lingering legal ramifications in the future.

"The Supreme Court, by a very odd combination of justices, reached a quite narrow conclusion...She (Justice Ruth Bader Ginsberg) simply agreed with the majority in results but not opinion," Tribe said. "Justice (Stephen) Breyer...wasn't going to throw in the towel. Even though he didn't think government speech is not correct, he joined, so it looked like a larger majority.

"The likely practical effect was the splitting up of the court into five separate opinions will give lawyers a field day in the lower courts, because there are more questions unanswered now than answered," he said.

In the end, however, the ruling stands, and like other LMA representatives and officials, Tribe expressed discontentment with the Court's decision.

"When I prevailed in the mushroom checkoff case, when the Supreme Court held that producers could not be compelled to promote generic ads, it seemed beef would be next in line," he said after expressing his "disappointment."

While it was yet unclear whether the May 23 Supreme Court ruling will be used as a legal precedent in future similar cases, one clear result, according to Iowa State University agricultural education and studies associate professor and attorney, Roger McEowen, will be future muddling of the law.

"It is confusing to me, as someone who looks at this stuff everyday, to try and sort out the five various opinions in this case: The majority, and the concurring dissents. It cannot help but leave someone in a state of dismay about our judicial process, based on what our court has done today," McEowen said May 23. "For, if it weren't for two justices who simply decided to go along with the majority for reasons other than their feeling that the majority was correct, that this case did involve government speech, that the beef checkoff was government speech, you would have had a 5-4 opinion the other direction, and the program would have been tossed out.

"But, you had two justices, Ginsberg and Breyer, that while not agreeing it was government speech, decided to go along with the other four justices to simply get the result they felt should have happened five or six years ago in a prior case. But, that does not bode well for the judicial process in this country," he said.

Happy producers

Despite these opinions of the Supreme Court's judgement on the beef checkoff, many hailed the Court's decision as one that will, in one way or another, benefit the U.S. cattle industry. Members of and officials with the Cattlemen's Beef Board were decidedly pleased with the case's outcome, particularly Alan Svajgr, Cozad, Neb., cattle producer and chairman of the CBB, the body charged with administering checkoff-funded promotions and research.

"We believe this is a victory for all cattlemen in the U.S.," Svajgr said. "Now it is more critical than ever that we come together as an industry to support the checkoff's educational, research and promotional programs aimed at increasing demand for beef at America's dining tables. We would call on the LMA and WORC (Western Organization of Resource Councils) to join us in these efforts, with an eye toward increasing long-term profitability for all segments of our industry."

Seeming to join in the spirit of cooperation shown in Svajgr's remarks was Bill Bullard, R-CALF USA chief executive officer. Having long been on the opposite end of the argument from NCBA officials, Bullard said the Court's decision provides some stability to an industry that has been paced by volatility for quite some time. Now, with that stability should come cooperative advancement.

"We now have the legal question that has ultimately been answered. We don't know what will change as a result of the litigation. We need to look at the opportunities this can present to the cattle industry in terms of improvement, carving out opportunities for U.S. cattle producers to promote U.S. beef," he said. "It's a little early to tell how things will change, other than that one of the most difficult environments to operate in is one with lots of uncertainty.

"Now, some certainty has been provided by the Supreme Court."

On a relatively unclear path ahead, Bullard said one change he does see possible in the U.S. cattle industry is the administrator for beef checkoff funds. The potential elimination of future political wrangling around the disbursement of checkoff dollars could come in the establishment of a new organization, independent from both R-CALF and NCBA, in charge of the task, according to Bullard.

"Given the challenge that has just been made, it should cause those who administer the program to re-evaluate the program itself," he said. "There's good reason for USDA to examine oversight of the program. Obviously when you have a politically motivated entity operating an industry-wide program, you maybe should have a different body administering it. Both R-CALF and NCBA have political agendas.

"I think we should seriously look at putting this in the hands of an apolitical group, without a political agenda, one that can market and promote beef without divisiveness," Bullard said.

Regardless of what the cloudy future holds for the beef checkoff in the U.S., May 23, 2005 will be a momentous day in terms of how the U.S. cattle industry will move forward. According to Svagjr, both the past and the present show the value and necessity of the checkoff to the nation's cattlemen, like himself.

"As a Nebraska cattleman, I feel positive about this outcome. It shows that producers realize, and now the Supreme Court realizes what the checkoff means to us and our profitability," he said. "Look at what we've done since the onset of BSE (bovine spongiform encephalopathy), with issues management. Producers realize it's something they don't want to do without.

"I'm very grateful."

Jeff Caldwell can be reached by phone at 515-280-5405, or by e-mail at jcaldwell@mchsi.com.

Date: 5/26/05

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