After the U.S. Supreme Court surprised both sides of the beef checkoff court fight May 23 by declaring the $80-million-per-year mandatory tax constitutional, opponents and proponents alike offered a dizzying display of spin.
Win, win, win. The checkoff’s theoretical administrator, U.S. Secretary of Agriculture Michael Johanns, crowed that the 6-3 decision “is certainly a win for many producers.”
The meatpacker-loving, chief hired hand of the checkoff, the National Cattlemen’s Beef Association (NCBA), was “elated” that the court found the checkoff immune from the First Amendment’s free speech guarantees.
American Farm Bureau President Bob Stallman declared his “happiness” that the court forsook its conservative constructionism for liberal activism to create a new doctrine of government power: federally mandated checkoffs are compelled subsidies from producers, not compelled speech by producers.
The other side. Checkoff opponents – who had several lower court checkoff victories hanging from their saddle horns – were “outraged (Campaign for Family Farms), “dismayed and concerned” (Farm Aid), “surprised” (National Farmers Union), and “disappointed” (Organization for Competitive Markets) after reading Justice Antonin Scalia’s majority opinion.
‘Shaky majority.’ What no group or individual noted, however, was how Scalia had spot-welded several minority opinions into a shaky majority.
Yes, Chief Justice Rehnquist and Justices Thomas and O’Connor agreed with Scalia’s new theory of government speech.
Justice Clarence Thomas, though, in a separate concurring opinion, handed checkoff opponents a big hacksaw to come back to the court and cut apart Scalia’s pot metal reasoning.
Jackpot. And, yes, Scalia hit an unforeseen jackpot when Justice Ruth Ginsburg, a court liberal, and Justice Stephen Breyer, a court swing vote, went along with him despite written opinions from each that said he was wrong to tag the checkoff government speech and outside the First Amendment.
Both voted with Scalia, however, says Roger McEowen, an ag law expert at Iowa State University, in what “appears to be just throwing in the towel on checkoff cases. They agreed to disagree with Scalia but, in the end, agreed with him. Pretty strange.”
Concurring opinion. More troubling for checkoff supporters, however, explains McEowen, is Thomas’ concurring opinion.
“It opened the door wide” to challenge Scalia’s government speech theory.
“Thomas clearly has indigestion with Scalia’s view,” says McEowen, “that the checkoff doesn’t violate the constitution’s free speech rights.”
True, for an individual, Thomas writes.
“But,” notes the Iowa lawyer, “according to Thomas, if the beef checkoff strays an inch outside Scalia’s new definition, then the checkoff is unconstitutional because it compels individuals to ‘associate’ themselves with ‘speech’ from checkoff groups they disagree with.”
An example. McEowen offers an example: The NCBA is the beef checkoff’s biggest employee, getting millions in checkoff program money each year.
NCBA is also an active political player in Washington; most recently lobbying to kill country-of-origin labeling (COOL) on red meat and favoring a resumption of Canadian cattle imports.
“While some cattlemen might strongly disagree with those NCBA’s policies,” McEowen continues, “by law they must pay a checkoff that greatly benefits NCBA. That is ‘compelled association’ and, as Justice Thomas explained, would be unconstitutional.”
Moreover, McEowen adds, NCBA is no longer the only national cattle group as it was in 1987 when Congress created the checkoff.
Upstart R-CALF USA, with 14,500 members in 46 states, is challenging NCBA for cattlemen loyalty.
As such, he surmises, “It wouldn’t be that difficult to make a case that many cattlemen today are ‘compelled to associate’ with NCBA despite not wanting to.”
The math. Should that come to pass – and it could; the pork checkoff case being considered by the court includes the “compelled association” complaint – the Scalia majority would flip on its activist head.
Do the math.
First there are the case’s three dissenters, Justices Souter, Stevens and Kennedy, who squarely do not view the beef checkoff as government speech.
Add Ginsburg and Breyer to the group because they, too, say the checkoff is not government speech.
That’s five, a majority already.
Then, if “compelled speech” comes before the court in any checkoff case, Thomas leaks away.
That’s a solid six who view federally mandated checkoffs as unconstitutional.
“Given these zigs and zags,” says McEowen, “this decision decided little.”
(Alan Guebert’s Farm and Food File is published weekly in more than 75 newspapers in North America. He can be contacted at email@example.com.)