On April 11 a group of 14 trade associations—not the checkoff programs themselves—"sent a letter to Rep. Robert Aderholt (R-Ala.) chairman of the House Appropriations agriculture subcommittee, and Rep. Sam Farr (D-Calif.) the subcommittee's top Democrat, asking them to urge USDA to recognize that the promotional programs are not subject to public records requests," Candice Choi and Mary Clare Jalonick report for The Associated Press. "The rationale was that the programs are funded by producers. The House Appropriations Committee approved the legislation on April 19, including the report language urging USDA to recognize the programs are not subject to FOIA."
While checkoff programs do not receive federal funds "it's the government's backing that enables them to collect money from producers," opines Urban Lehner, editor emeritus for DTN The Progressive Farmer. "In a 2005 case involving the beef checkoff, the Supreme Court rejected a challenge from ranchers who didn't want to pay the assessment. They said being forced to subsidize promotional messages with which they disagreed (because the messages promoted generic beef, not particular types of beef) violated their First Amendment rights."
"The court replied that citizens have no First Amendment right not to fund "government speech"—and checkoff messages are government speech," Lehner writes. "Writing for the court, the late Justice Antonin Scalia declared, 'The message of the (beef) promotional campaigns is effectively controlled by the Federal Government itself" Checkoff boards liked the decision. They like the governmental aura when it enables mandatory fee collections. They don't like it when it allows embarrassing information about their operations to come to light. That's the real reason 14 commodity organizations (not the checkoff boards themselves, which aren't allowed to lobby) sought the exemption."