Judge rules Montana beef checkoff unconstitutional

District court's preliminary injunction prohibits collecting beef checkoff funds without payers’ consent.

The U.S. District Court for the District of Montana affirmed a ruling that the U.S. Department of Agriculture's beef checkoff program, as currently administered, violates the First Amendment. The court put in place a preliminary injunction prohibiting the private Montana Beef Council from retaining beef checkoff funds without the payers' consent.

The court took action after a magistrate previously recommended the injunction in December 2016, agreeing with plaintiff in the suit -- the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) -- that the checkoff was being run unconstitutionally.

"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'," the court wrote in its decision, adding, "What distinguishes unconstitutional subsidies for private speech from constitutional subsidies of government speech is not the content of the speech but, rather, that the latter is 'democratic(ally) accountab(le).' ... The USDA does not control how the Montana Beef Council spends the money that it obtains from the federal beef checkoff program."

The beef checkoff is a federal tax that compels producers to pay $1 per head every time cattle are sold, half of which is used to fund the advertisements of private state beef councils, like the Montana Beef Council.

R-CALF USA chief executive officer Bill Bullard said, "For well over a decade, R-CALF USA members fought to reform what we considered a terribly mismanaged national beef checkoff program, and for well over a decade, we faced an impenetrable wall of top-ranking USDA officials whose connections to the multinational meat packers' lobby caused them to steadfastly oppose every single reform proposal we advanced. After a meaningful, law-based evaluation of our concerns, we won. We hope this will be just the first step of correcting over a decade's worth of beef checkoff program mismanagement."

Sens. Cory Booker (D., N.J.) and Mike Lee (R., Utah) have put forth bipartisan legislation that would reform the checkoff programs to make them more transparent and accountable to producers.

David Muraskin of Public Justice, lead counsel for the plaintiff in the case, said the district 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."

Chaley Harney, Montana Beef Council executive director, said although the council was not party to the lawsuit, it is aware that the order was issued and is "working to understand the implications with the limited information we have at this time."