Paul’s statement in paragraph 2 that “the Board runs the whole program is incorrect. If a Christmas tree check-off becomes a reality, every aspect of the program will require approval from the Secretary of Agriculture. The Board can recommend, but all budgets and financial reports must be submitted to the Secretary. The Board can receive and investigate violations, but it must report those to the Secretary. Read the draft of this proposal, every function the Board performs needs approval from the Secretary of Agriculture first. The powers held by this Board are granted by the Secretary of Agriculture. Board authority is subjugated by the power of that government appointed individual. Check out the draft, “no program, plan or project shall be implemented prior to its approval by the Secretary. Once a program, plan, or project is so approved, the Check-off Board shall take appropriate steps to implement it.” But all of them, every single one of them, must receive prior approval from the Secretary.
Language, particularly contract language, can sometimes be a bit obscure. The draft does say, “ Patents, trademarks, information, publications, and product formulations developed through the use of funds received by the Check-off Board under this subpart shall be the property of the U.S. Government ( the words, as represented by the Check-off Board do follow, but since every single project, plan, and program must be submitted to the Secretary for approval, those properties really aren’t controlled by the Board. And if you cannot control property, do you actually own it? I do have one question, though, what happens if the program is terminated? The Board would be dissolved. Remember, the language stated….shall be property of the U. S. Government…
Check-off supporters eagerly embraced the use of “government speech” in countering the free speech challenge. Why should they be so quick to declare that the government speaks for us? A government mandated program must satisfy three tests in order to constitute government speech. First, the government must exercise sufficient control of the source of the message and be deemed ultimately responsible for the message. Second, the main purpose of the message and the assessments must be identified as the government’s. Finally the funding source of the assessments must come from a large non-discrete group. The last qualification could ultimately sink this argument because Christmas tree producers are an easily identifiable, or discrete group. When you speak for an easily identifiable group, you run a greater risk of being challenged for trampling on its right to Freedom of Speech.
Paul mentions instances of possible money mismanagement and happily reports that problems were averted because the government stepped in. My response to this? If there is no check-off, there is no need for government protection from fund mismanagement. He ended that thought with the statement that we will be collecting only $ 2 to $ 3 million a year. Are we to infer that there will be LESS reason for mismanagement because, by comparison, it is such a paltry amount?
Check-offs have been portrayed negatively because they have a lot of unattractive qualities. Growers might compose the Board, but the power behind these programs rests in the hands of the Secretary of Agriculture and the USDA. How much is this oversight going to cost us? How much will we owe the Secretary of Agriculture, the USDA, the U.S. Customs Service, and the auditors. What are the projected expenses for the Board?
We appreciate Paul’s financial support for the DVD. Actually, we have produced three of them. Interested parties can purchase one for $ 20.00. We don’t need a check-off program to get one in every state fair. I agree that raising money on a voluntary basis can be challenging, but I believe that good projects can get funding. And government intervention does not ensure success.
I would argue that a costly government program does not guarantee the spread of relevant information. I think that highly motivated growers can do a lot and they can do it better, i.e. more cheaply with fewer problems, than a government bureaucracy.
I appreciate the effort, time and money spent by check-off supporters. However, those are not sufficient reasons to support this proposal. Right now, there are too many questions and few good answers.