Unconstitutional Farm Checkoffs
New York Times Editorial
November 1, 2003
One of the major battles in American farming in the past few years concerns the fees collected from farmers to pay for generic advertising like the familiar ”Got Milk?” and ”Pork: The Other White Meat” campaigns. The so-called checkoffs are mandated by the federal Agriculture Department but administered by industry groups. The mandatory checkoffs may look small — 40 cents for every $100 in sales in the case of pork — but they add up.
It is time for the checkoffs to end. Pork farmers said so in a referendum three years ago, and so have the courts. Last week, the Sixth Circuit Court of Appeals upheld a ruling in Michigan by Judge Richard Enslen, who in October 2002 found the pork checkoff program to be ”unconstitutional and rotten.” In reaching its judgment, the appeals court cited the Supreme Court, which ruled in 2001 that forcing mushroom growers to participate in a checkoff program violated their First Amendment rights by compelling them to express a message with which they did not agree.
Under the Bush administration, the U.S.D.A. has routinely defended checkoff programs, claiming that they constitute ”government speech.” The Sixth Circuit dismissed that notion, arguing that checkoffs simply forced money out of the pockets of farmers and into the hands of commodity industries.
What makes this battle over checkoffs especially heated is not just the millions of dollars at stake. It is the fact that the checkoff issue calls attention to the radical split between large and small farmers. Since the mid-1980’s, when commodity promotion programs began, the concentration of farming in fewer and fewer hands has increased sharply, especially in the hog business. It is hard for a small farmer to justify giving up any of his earnings to help pay for advertising that disproportionately benefits gigantic corporate farms. If the U.S.D.A. valued small farmers, as it claims, it would accede to the courts, not to the pressure of industry groups.