One of the legal profession’s most famous sayings notes that when the facts are on your side, argue the facts; when the facts are against you, argue the law.
By that simple test, the USDA’s lengthy, costly and – so far – failing defense of commodity checkoffs is in deep trouble.
Beef brief. In recent filings that ask the U.S. Supreme Court to consider the constitutionality of the beef and pork checkoffs, USDA argues and argues the law.
And the arguments go from shopworn to silly. In its brief in the beef case, USDA attempts to link the beef checkoff to other government regulatory programs like meat inspection.
The beef checkoff’s chief challenger, the Kansas City-based Livestock Marketing Association, layers its brief in facts.
Pork plea. Likewise, USDA’s pork checkoff writ of certiorari, a plea to the Supreme Court to hear the appeal, is a twisting turnpike of technicalities.
The “respondents brief in opposition” to USDA, written by the Farmers’ Legal Action Group on behalf of The Campaign for Family Farmers, is so factually air-tight that several of the Supremes may need oxygen while reviewing it.
USDA’s requests, filed formally and separately through the White House’s Solicitor General, are a win-or-die step in the long and checkered checkoff game.
Next step. If the Supreme Court agrees that the free speech questions posed by mandatory producer checkoffs needs clearing up, it may grant USDA’s request for certiorari and hear one or both cases sometime next fall.
If, however, the Court agrees with four previous appellate court decisions which declared the pork, beef and – I kid you not – alligator checkoffs unconstitutional, it will deny certiorari and checkoffs will be as dead as the alligators whose hides decorate many an attorney’s briefcase.
The issue. The issue facing the nine justices is not complex: Do the beef and pork checkoffs “violate the First Amendment,” as Solicitor General Theodore Olsen notes in the government’s pork case, “insofar as they require pork producers to pay assessments for generic advertising with which they disagree”?
The answer to that question swings on one tiny legal hinge.
According to USDA, speech underwritten by checkoffs – like generic product advertising, producer communication, education, research – is not given First Amendment rights because it isn’t protected by the First Amendment.
It’s ‘government speech.’ Instead, argues USDA, these checkoffs were created by government and, as such, checkoff “speech” falls outside any individual’s protected rights under the First Amendment.
But, as noted, USDA has used that logic in lower court checkoff appeals and has yet to convince one court of its merits. All have routinely gutted the government’s “government speech” claim using a previous Supreme Court decision, known as United Foods, as their knife.
This USDA and its powerful friends in the commodity groups – who have millions of reasons, the money-dripping billion-dollar-a-year checkoff industry – disagree. They think the appellate courts warped the Supreme Court’s 2001 United Foods decision in cashiering both checkoffs.
Principally, the checkoffs are government speech, explains USDA, because enabling legislation gave the secretary of agriculture sole right to name checkoff board members and USDA sole oversight of all checkoff spending. Technically, both points are accurate.
Not in the real world. Practically, however, that’s not how checkoffs operate. As the appellate court decisions have repeatedly noted, producers almost completely control checkoff collection, budgeting, spending and communication while USDA’s actual role is more that of a mushroom than a manager.
Getting more creative. Faced with the tedious repetition of its lousy, losing arguments – which it does anyway – USDA gets a bit more creative in its beef brief to the high court.
Noting that the government already “extensively regulates the production, processing and marketing of beef,” it then draws a straight line to the checkoff as “one of the federal laws regulating the beef industry” – 100 percent pure baloney.
We’ll know soon. USDA has asked the court to take the beef case if it takes any. Checkoff opponents have asked the court to take both if it takes any.
Hopefully, it will take neither and all checkoffs, if they are to continue, will be forced to reform. Refund provisions would fix nearly every checkoff.
The court’s decision is expected May 17.
(The author is a freelance ag journalist who lives in Delavan, Ill. He can be reached via e-mail at: AGuebert@worldnet.att.net. Read his columns online at www.farmanddairy.com.)
© 2004 ag comm
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