Group: Beef Checkoffs Unconstitutional

R-CALF Argues Federal Checkoff Should not Fund Taxpayer Speech Without Consent

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A court motion filed this week targets beef checkoff programs in 15 states. (DTN/Progressive Farmer photo by Pamela Smith)

OMAHA (DTN) -- A cattle interest group has asked a federal court to declare unconstitutional 15 state beef checkoff programs, in a motion filed this week.

Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America, or R-CALF USA, filed a motion this week in the U.S. District Court for the District of Montana, asking the court to declare unconstitutional checkoff programs in Montana, Hawaii, Indiana, Kansas, Maryland, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont and Wisconsin.

According to court documents filed on Monday in Montana, R-CALF asked the court to enjoin the federal checkoff program from authorizing private state beef councils the use of a beef checkoff tax to fund "private speech without the payers' affirmative consent."

The Montana court already has held that the action likely violated the First Amendment to the U.S. Constitution, as the court previously granted a preliminary injunction against the Montana Beef Council for using the money without consent.

R-CALF now seeks a declaratory judgment and permanent injunction that applies to the state councils identified in the lawsuit.

"The federal commodity 'checkoff' programs impose a targeted tax on producers of goods, including cattle, to fund 'a coordinated program of promotion and research designed to strengthen their' industry," R-CALF said in its motion. "The Supreme Court held 'the compelled funding' mandated by these programs is 'not permitted under the First Amendment.'

"The only reason the Beef Checkoff has survived is the Supreme Court held two of the entities that use the funds, the 'Beef Board' and 'Beef Committee,' are 'effectively controlled by the Federal Government,' thus they generate 'government speech,' and 'government speech' is exempt from First Amendment scrutiny."

R-CALF said in its motion the councils' use of checkoff funds supports private and not government speech.

"Under Supreme Court precedent, if the checkoff subsidizes private speech, it violates the First Amendment," the motion said. "Therefore, the court should enjoin the councils from using the money unless they first obtain affirmative consent, with the default being the money goes to the Beef Board and Committee to use for 'government speech.'"

Back in November 2018, the court granted R-CALF's motion to expand an ongoing lawsuit to at least 13 states.

The $1 federal checkoff sends 50 cents to the Cattlemen's Beef Promotion and Research Board while 50 cents goes to state beef councils. Fifteen states also have a state-operated $1 checkoff: Alabama, Georgia, Iowa, Idaho, Illinois, Kentucky, North Carolina, North Dakota, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah and Washington.

R-CALF Chief Executive Officer Bill Bullard said in a statement the beef checkoff is harming U.S. cattle producers.

"The beef checkoff is eliminating opportunities for U.S. cattle producers to remain profitable by promoting foreign beef as if it were equal to domestic beef and by supporting corporate efforts to consolidate and control our industry," he said. "Our members said enough is enough and our plan is to put producers back in control of the checkoff, which our lawsuit helps accomplish."

A lawsuit filed in 2014 by the Organization for Competitive Markets demanded the release of 9,300 pages of documents related to the USDA's Office of the Inspector General investigation into the beef checkoff program. The documents stem from two OIG audits of the beef checkoff and its contractors, including the National Cattlemen's Beef Association.

The audits found producer investments in the checkoff are protected by a firewall that prevents beef checkoff dollars from being used for policy activities. Two audits by the OIG and several random audits by USDA found contractors to be in compliance with the laws that protect checkoff funds.

In 2017, a federal court ordered the release of thousands of documents requested by the OCM, but most of them were heavily redacted.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley