Court sides with R-CALF in Montana checkoff lawsuit

by Erica Shaffer
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GREAT FALLS, Mont. – The US District Court for the District of Montana recently upheld a lower court’s injunction against the Montana Beef Council keeping a portion of beef checkoff funds without consent from the payer.

The Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) filed the complaint in the US District Court for the District of Montana in 2016. R-CALF argued that the checkoff program violates the First Amendment by forcing beef producers to subsidize advertisements that contradict their values.

R-CALF applauded the ruling. In a statement, David Muraskin of Public Justice, which served as lead counsel for in the case for R-CALF, said that the court’s decision will “finally provide Montana ranchers leverage to control how their money is spent and their goods are advertised. Without government accountability and control the checkoffs amount to nothing more than a massive transfer of wealth from farmers and ranchers to multinational corporations, which is against our values and laws.”

Federal checkoff programs are mandatory participation programs administered by the US Dept. of Agriculture. The programs are funded by compulsory fees on beef, pork and other producers of agricultural products. Beef producers pay $1 per head of cattle sold.

US District Court Judge Brian Morris said in his ruling that “…The First Amendment prohibits the Government from compelling its citizens to subsidize private speech to which they object. The Government violates the First Amendment when it compels a citizen to subsidize the private speech of a private entity without first obtaining the citizen’s “affirmative consent.””

Morris also said that speech of a private entity constitutes government speech when the government exercises “effective control” over the speech. However, Morris found that the US Dept. of Agriculture had little control over the Montana Beef Council.

“The statutes and regulations relating to the Beef Checkoff Program provide the USDA with less control over the Montana Beef Council,” Morrison said. “The USDA lacks the authority to appoint or remove any of the Montana Beef Council’s members. The USDA does not control how the Montana Beef Council spends the checkoff assessments. The applicable statutes and regulations merely prohibit the Montana Beef Council from using checkoff money to promote “unfair or deceptive” practices, or to “influenc[e] governmental policy.”

In a statement, R-CALF USA CEO Bill Bullard said, “…We hope this will be just the first step of correcting over a decade’s worth of beef checkoff program mismanagement.”

US lawmakers have taken notice of the checkoff controversy, and have introduced legislation aimed at bringing transparency and accountability to federal commodity marketing programs. Sen. Mike Lee (R-Utah) and Sen. Corey Booker (D -NJ) introduced the Opportunities for Fairness in Farming Act of 2017 (OFF Act) in March. A companion bill, The Voluntary Checkoff Act, co-sponsored by Reps Dave Brat (R-Va.) and Dina Titus (D-NV) was introduced in the House.

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