August, 2001

Fruits of Thought

For The People

The Supreme Court has spoken and, as is so often the case, its decisions trivialize the issue at hand. Basically the Court has now found that mandatory assessments for the Mushroom Council, which promotes the consumption of mushrooms, is an unconstitutional restriction on the free-speech rights for mushroom growers who might prefer not to say what the Council says. On the other hand, the Court has also ruled that mandatory assessments for the California Tree Fruit Agreement (CTFA), which promotes the consumption of California tree fruit, passes constitutional muster.

What’s the distinction? Whereas promotion was the sole purpose of the Mushroom Council, the CFTA is part of a more comprehensive regulatory scheme, including research and what not, to promote the California tree fruit industry. The Court seems to view the CTFA’s involvement with speech as incidental to a greater purpose.

The logic is weak, and one is tempted to ask how long such a distinction can hold. But then one thinks of Christmas. For generations it was common for a town to have a crèche or other religious symbol displayed on public property at Christmastime. No more – or, at least, not all by itself. For the Supreme Court ruled that such a symbol was a violation of the constitutional injunction against the Congressional establishment of religion.

The Court went on to say, however, that if the display was merely a neutral display of common holiday symbols, the inclusion of a particular religious symbol could be viewed as incidental and thus permitted. So, towns all across America ordered statues of Rudolph the red-nosed reindeer, Santa Claus, Mrs. Claus, elves, candy canes, sleighs, etc., to put around the religious symbols.

So, even as you read this, the produce industry does its part to keep lawyers from suffering in a new recession as commodity boards and the growers who don’t like them pay hourly rates to have white-shoe law firms on Washington’s K Street analyze the documents. Lawyers for disenchanted growers look to find grounds for not paying; and the boards’ lawyers look at amending their statutory basis to insure they are comprehensive enough to meet the Supreme Court standard – like the towns buying all the holiday fluff.

The legal issue is complicated. And we will see the battle fought for a long time. Constitutional scholars I’ve spoken with expect that under the current precedent, many growers will find grounds to sue. A number of scholars also believe there are powerful legal arguments – particularly the notion of mandatory assessments being an unconstitutional delegation of Congressional authority to levy taxes – that will be tested in cases to come.

But it also is undeniable that commodity promotion boards have the sanction that a long history brings and undeniable popularity among many growers.

It is important to remember that the agriculture industry alone could never have established these boards. We needed lots of votes from city slickers in Congress to do so. These votes were gotten because the boards grew out of a profoundly political decision: That we Americans desire to see our food system structured so that independent farmers could market their own crops, and that farmers could band together to grow an industry without having it dominated by a few big commercial interests.

Politically, issues like mandatory assessments cause a schism in the body politic. On the one hand, Americans love liberty, and any attempts to compel people to fund activities that they prefer not to offend our sense of liberty. Economically speaking, we also are skeptical of governmental programs.

That attitude, however, presumes indifference to what would happen to the composition of the industry without commodity boards. If the only effective way advertising and promotion can happen is to let a big company do it, then over time big companies will grow and increase market share. Without a commodity board to level the playing field, one day, one, two or three big companies will market all the commodities.

In an economic sense why should that matter? After all, we have only a few auto manufacturers or major soft drink producers, and we get along fine. And perhaps it doesn’t really matter, at least economically.

Indeed, it is hard to imagine that the fate of the mushroom industry or the kiwi industry or the carrot trade can possibly matter. But Thomas Jefferson, probably the most popular of the founders, told us that it does matter. He said: “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts He has made His peculiar deposit for substantial and genuine virtue.”

It is easy to think of commodity promotion groups as solely an industry issue. But commodity promotion groups have a specific purpose: They make it possible for an industry to promote itself without having to consolidate. They have many a flaw, but commodity promotion groups were authorized by the peoples’ representatives in Congress to preserve a place in our society for the independent grower and marketer.

The body politic, through its elected representatives, chose to indulge a Jeffersonian impulse to maintain the population of independent farmers, confident that these same farmers are the custodians of “substantial and genuine virtue”. In effect, the people said that government, in a democracy, could not be indifferent to the kind of people its policies are likely to produce. That is a thought far more profound and an ambition worthy of far more respect than the Supreme Court chose to give it.  pb