Checkoff Battle Appears Headed to Supreme Court

The legal options for keeping the present beef checkoff in place are narrowing.   The Livestock Marketing Association and the Western Organization of Resource Councils have challenged the constitutionality of the checkoff, after failing to earn a referendum on it. 

The Eighth Circuit Court of Appeals July 8 ruled 3-0 that the beef checkoff was unconstitutional, setting the stage for a possible appeal to the U.S. Supreme Court.  Before that step can be taken, the U.S. Justice Department has until Aug. 22 to ask the entire panel of nine judges in the Eighth Circuit to hear the appeal.  It is not known how long it will take the Eighth Circuit to reply to that request, but it is considered unlikely that the court will grant it. 

If the Eighth Circuit refuses to hear the case, then the Justice Department will have seven days to appeal to the U.S. Supreme Court.  The Supreme Court then would have to decide whether or not it wants to hear the case.

Compounding the issue is a conflicting decision in the Ninth Circuit Court, which used the transcript from the checkoff challenge heard in South Dakota to rule on a separate challenge in its Montana jurisdiction.  The Montana court ruled that the checkoff was constitutional and that decision is under appeal to the Ninth Circuit Court of Appeals. 

In two previous cases, the Supreme Court has ruled that the beef checkoff was constitutional.  However, the legal argument in this case is different than before and is modeled after the mushroom checkoff, which the Supreme Court ruled unconstitutional.  In that case the court said the checkoff violated First Amendment rights by forcing association.

After that decision, the mushroom program became voluntary for consumer information and retail marketing, and mandatory for research and other programs, said Wayne Watkinson, legal counsel for the Beef Board.  The program continues to promote fresh mushrooms.

Support for the beef checkoff, according to July  research by Aspen Media, is 63 percent.  The United States has had a beef checkoff program of some form since 1922.