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United States v. Robert L. Frame

filed: September 14, 1989.

UNITED STATES OF AMERICA
v.
ROBERT L. FRAME, SR. AND VINTAGE SALES STABLES, INC., APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 87-0474.

Sloviter, Scirica and Weis, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

This appeal concerns constitutional and statutory challenges to the Beef Promotion and Research Act of 1985, 7 U.S.C. §§ 2901-11 (Supp. III, 1985). The Act requires cattle producers and importers to finance a national beef promotional campaign by paying, on each head of cattle sold, a one dollar assessment, which is eventually remitted to statutorily designated organizations composed of industry representatives. The constitutional questions are whether the Act contravenes: (1) the limits of congressional power enumerated in the Federal Constitution; (2) the Free Speech and Association clauses of the First Amendment; or (3) the Takings Clause or Equal Protection guarantee of the Due Process Clause of the Fifth Amendment. The statutory questions are whether the Act: (1) creates a civil cause of action in which the government may recover uncollected assessments from "collecting persons"; or (2) authorizes the government to impose late payment charges. The district court held that the Act violated no constitutional provision, and that the Act authorizes a private cause of action against "collecting persons" for both uncollected payments and late charges. We will affirm.

I. BACKGROUND

A. Statutory and Regulatory Scheme

The Beef Promotion and Research Act, Pub.L. No. 99-198, Title XVI, § 1601, 99 Stat. 1597 (codified as amended at 7 U.S.C. §§ 2901-11), first passed in 1976 and later amended in 1985, was designed to strengthen the beef industry's position in the marketplace through a coordinated program of promotion and research. 7 U.S.C. §§ 2901(b). This legislation was structured as a "self-help" measure that would enable the beef industry to employ its own resources and devise its own strategies to increase beef sales, while simultaneously avoiding the intrusiveness of government regulation and the cost of government "handouts." See Report of Committee on Agriculture, Beef Research and Information Act, H.R.Rep. No. 452, 94th Cong., 1st Sess. 3 (1975). The Beef Promotion and Research Program receives no direct funding from the federal government, and in this regard resembles a number of recent congressional enactments designed to make various federal regulatory programs partially or entirely self-financing. See Skinner v. Mid-America Pipeline, 490 U.S. 212, 109 S. Ct. 1726, 1729, 104 L. Ed. 2d 250 (1989) (characterizing Section 7005 of Consolidated Omnibus Budget Act of 1985, codified at 42 U.S.C.App. § 1682a, which directs Secretary of Transportation to collect "pipeline safety user fees" to fund administrative costs, as one example of several self-financing measures). Currently in existence are seven other promotion and research programs for agricultural commodities, identical in most respects to the Beef Promotion Act. See 7 U.S.C. §§ 2101-18 (Supp. III 1985) (cotton); 7 U.S.C. §§ 2611-27 (Supp. III 1985) (potatoes); 7 U.S.C. §§ 2701-18 (Supp. III 1985) (eggs); 7 U.S.C. §§ 4501-19 (Supp. III 1985) (dairy products); 7 U.S.C. §§ 4601-12 (Supp. III 1985) (honey); 7 U.S.C. §§ 4801-19 (Supp. III 1985) (pork); 7 U.S.C. §§ 4901-16 (Supp. III 1985) (watermelon).*fn1

The Beef Promotion Act directs the Secretary of Agriculture to promulgate a Beef Promotion and Research Order that establishes this self-help program and provides for its financing "through assessments on all cattle sold in the United States and on cattle, beef, and beef products imported into the United States." 7 U.S.C. §§ 2901(b), 2903, 2904(8)(A)-(C). The Beef Promotion Act itself, however, establishes the rate of assessment at one dollar ($1.00) per head of cattle, which must be paid by cattle producers and importers. 7 U.S.C. § 2904(8)(C). The Act also specifies most of the other terms that the Order must contain, see 7 U.S.C. § 2904(1)-(11), but authorizes the "inclusion of all terms and conditions necessary to effectuate the provision of the order," provided they are not inconsistent with the statute. 7 U.S.C. § 2904(12). After notice and opportunity for public comment, the Beef Promotion and Research Order became effective on July 18, 1986, 7 C.F.R. §§ 1260.101-.217 (Subpart A), while the rules and regulations for collection of assessments, 7 C.F.R. §§ 1260.301-.316 (Subpart B), and the Certification for the Cattlemen's Beef Promotion and Research Board, 7 C.F.R. §§ 1260.500-.530 (Subpart C), became effective on October 1, 1986.

The Secretary's Order, as the Act mandates, provides for the establishment of a Cattlemen's Beef Promotion and Research Board ("Cattlemen's Board"), and a Beef Promotion Operating Committee ("Operating Committee") to administer the Order under the supervision of the Secretary. The Beef Promotion Act and Order specify the manner in which the membership of the Cattlemen's Board is to be selected. First, the Order divides the United States into forty-two units that correspond primarily to the States. 7 C.F.R. § 1260.141(a). Forty-one of those units represent cattle producers, and one unit represents importers. Id. The Order specifies the number of Cattlemen's Board members allocated to each unit. Id. "Eligible organizations" representing each unit submit nominations to the Secretary for positions on the Cattlemen's Board. 7 U.S.C. §§ 2904(1), 2905(a); 7 C.F.R. § 1260.143(a). "Eligible organizations" are those existing state cattle organizations certified by the Secretary as meeting criteria specified by the Beef Promotion Act and Order, criteria which include large membership, history of stability, and an "overriding purpose of promoting the economic welfare of cattle producers." 7 U.S.C. § 2905(b); 7 C.F.R. § 1260.530. From these nominations, the Secretary appoints the members of the Board. 7 U.S.C. § 2904(1); 7 C.F.R. § 1260.141(b).

Similarly, the Beef Promotion Act and Order details the selection procedure to fill the twenty positions available on the Operating Committee. The Cattlemen's Board elects from its own ranks ten members to serve on the Committee. 7 U.S.C. § 2904(4)(A); 7 C.F.R. §§ 1260.161. The other ten Committee members are cattle producers who are representatives of the "Federation," which includes as its members "qualified State beef councils." 7 U.S.C. § 2904(4)(A). A "qualified State beef council" is a beef promotion entity that is authorized by state statute, or a beef promotion entity that receives voluntary assessments or contributions from cattle producers; in either case, that entity is not "qualified" unless certified by the Cattlemen's Board. 7 C.F.R. § 1260.115. Federation representatives on the Committee consist of the Federation chairperson and vice-chairperson, and eight elected cattle producers who are members of the Federation Board of Directors, and are members or ex officio members of the Board of Directors of a Qualified State beef council. 7 C.F.R. § 1260.161(c). The Secretary must certify that the Federation representatives meet the above criteria and that they have sufficiently disclosed any contractual relationship between the Federation representative and the Committee or Board. 7 U.S.C. § 2904(4)(A); 7 C.F.R. § 1260.161(c).

Under the supervision of the Secretary, who must finally approve all budgets, plans, expenditures, and contracts for them to become effective, 7 U.S.C. §§ 2904(4)(C) & (6)(A),(B), the Operating Committee and the Cattlemen's Board take the initiative in implementing the program. The Operating Committee has the responsibility for developing plans and projects of promotion and advertising, and of submitting to the Board, for its approval, budgets for the fiscal year. 7 U.S.C. § 2904(4)(A)-(C); 7 C.F.R. § 1260.168(b), (d), (e). The Operating Committee is also authorized to enter into contracts with established national nonprofit industry-governed organizations, including the Federation, to implement the Beef Promotion Act. 7 U.S.C. § 2904(6); 7 C.F.R. § 1260.168(f). The powers and duties of the Cattlemen's Board, delineated by the Beef Promotion Act, include the power to: (A) administer the order; (B) make rules and regulations to effectuate the terms and provisions of the Order; (C) elect members to serve on the Operating Committee; and (D) approve or disapprove budgets submitted by the Committee. 7 U.S.C. § 2904(1)(A)-(D).

Cattle producers and importers are required to pay an assessment of one dollar ($1.00) per head of cattle. 7 U.S.C. § 2904(8)(C); 7 C.F.R. § 1260.172(a)(1). In calculating the amount of assessment due, producers receive partial credit from the Cattlemen's Board for contributions to a qualified State beef council. 7 U.S.C. § 2904(8)(A); 7 C.F.R. §§ 1260.172(a)(3). Each person making payment to a producer for cattle purchased is designated a "collecting person," 7 C.F.R § 1260.311(a), and is required to collect a per-head assessment and remit the assessments either to the qualified State beef council (which in turn remits the money to the Board), or if no such council exists in that State, directly to the Cattlemen's Board. 7 U.S.C. § 2904(8)(A); 7 C.F.R. §§ 1260.172(a)(5), 1260.311(a), 1260.312(c). All "collecting persons" are obligated to maintain records of assessments collected and payments made pursuant to the Beef Promotion Act, and must make these records available to the Secretary for inspection. 7 U.S.C. 2904(11); 7 C.F.R. § 1260.202. The Order further requires collecting persons to report to the Board specific information for each calendar month at the time assessments are remitted. 7 C.F.R. § 1260.312(a)-(c). The Act does not provide for reimbursement for such expenditures. By regulation, collecting persons must remit assessments not later than the 15th day of the month following the month in which the assessments were collected. 7 C.F.R. §§ 1260.172(a), 1260.312(c). The Order also provides that any overdue assessments will be increased by 2% each month, beginning the date after the assessments were due. 7 C.F.R. § 1260.175.

The Secretary is authorized to make investigations to uncover current, past, or future violation of the Beef Promotion Act and/or Order. 7 U.S.C. § 2909. Pursuant to this investigation, the Secretary has been given the power to administer oath and affirmation, to subpoena both witnesses and records, and to invoke the aid of the courts if the subpoenas are ignored. Id. In addition, the Act contains two specific enforcement mechanisms. The Secretary may, after an administrative hearing, issue an order to restrain or prevent a person from violating the Beef Order, and assess a civil penalty of up to $5,000 for a violation already committed. 7 U.S.C. 2908(a)(1) & (2). Alternatively, the Secretary may request that the Attorney General initiate a civil action to enforce, and to prevent and restrain a person from violating, any order or regulation promulgated by the Secretary under the Act. 7 U.S.C. § 2908(b) & (c).

Within twenty-two months of the issuance of the Order, the Secretary was required to conduct a referendum among those persons who were producers and importers during the trial period. 7 U.S.C. § 2906(a). The Order would continue to operate only upon the approval by a majority of those participating in the referendum. Id. Prior to the referendum, any cattle producer who paid an assessment and who was not in favor of supporting the promotion and research program, could have demanded and received a full refund of the assessments paid. 7 U.S.C. § 2907; 7 C.F.R. §§ 1260.173, 1260.174. On May 10, 1988, the referendum was conducted and the Order was approved by 70% of those eligible to vote. Assessments, therefore, are now mandatory.

B. Factual and Procedural History

The facts are undisputed. The defendant-appellant L. Robert Frame, Sr. operates Vintage Sales Stables ("Vintage"), a cattle auction sales business in Lancaster County, Pennsylvania. Frame also raises cattle at his residence in Chester County, Pennsylvania. Consequently, under the Act, Frame qualifies as both a "collecting person" and a producer; he must collect the $1.00 per head of cattle assessments from the proceeds derived from the sale of cattle at his auction barn and pay the assessments on each head of cattle he sells as a producer. Since the effective date of the Beef Promotion Act, Frame has neither collcted nor remitted the required assessments, nor filed the required reports, despite having received several warnings about his noncompliance from the Pennsylvania Beef Council,*fn2 the Cattlemen's Board, and the Department of Agriculture, Livestock and Seed Division.

In November, 1986, the United States brought an action in the district court to recover money due from Vintage and Frame, as president of Vintage, for Frame's failure to fulfill his obligations as a collecting person under the Beef Promotion Act and Order, i.e., to collect assessments on beef sold, remit those funds to the qualified State beef council, and maintain records of those collections.*fn3 Frame did not dispute that he had failed to comply with the Beef Promotion Act. Instead, he asserted that the Beef Promotion Act is unconstitutional, and that the Act failed to confer upon the government the right to commence a civil action against collecting persons to recover uncollected assessments. Frame requested that the court enjoin the collection of assessments and the use of collected funds, and mandate the return of the funds not yet expended.

After both parties moved for summary judgment, the district court granted the government's motion for partial summary judgment on the issue of liability. United States v. Frame, 658 F. Supp. 1476 (E.D.Pa. 1987). The court thereafter ordered defendant to file all reports required by the Act within a reasonable period and to provide the Secretary of Agriculture with such materials reasonably required to determine the amount of liability under the Act. After defendant complied with the court's order, the government moved for summary judgment on the amount of liability. Defendant then renewed his motion for summary judgment, arguing that the Act did not authorize the government to recover uncollected assessments from defendant as a "collecting person," or to impose late payment charges. The district court granted the government's motion for summary judgment and entered judgment against defendant totalling $66,625.11 in uncollected assessments and late payment charges. This appeal followed.

II. LACK OF CONGRESSIONAL AUTHORITY AND UNCONSTITUTIONAL DELEGATION

Frame has maintained throughout this litigation that none of the enumerated powers in Article I of the United States Constitution confer upon Congress the authority to establish the sort of program instituted by the Beef Promotion Act. Following oral argument, we directed the parties to submit supplemental briefs discussing Congress' authority to delegate to the members of industry: (1) the prerogative, through a referendum, to decide whether to put the program into effect; and (2) the responsibility for the collection of assessments and the decision as to precisely how the funds will be spent. We will address these issues in turn.

A. The Commerce Power

The parties now agree that in enacting the Beef Promotion Act, Congress presumed that it was exercising its power under the Commerce Clause.*fn4 The Act's finding that "beef and beef products move in interstate and foreign commerce," or "directly burden or affect interstate commerce of beef and beef products," 7 U.S.C. § 2901(a), reflects this intent. The question before us, therefore, is whether this Act is a valid regulation under the commerce clause. In finding for the government, the district court held that the promotion of beef represents a valid exercise of Congress' "broad" power to "stimulate" interstate commerce. 658 F. Supp. at 1482. We agree.

It is well settled that Congress will have validly exercised its power to regulate interstate commerce if the activity being regulated affects commerce, and if there is a rational connection between the regulatory means selected and the asserted ends. See Katzenbach v. McClung, 379 U.S. 294, 301, 303-04, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). Furthermore, a reviewing court need only inquire whether there is a rational basis for the finding that the regulated activity affects interstate commerce. Hodel, 452 U.S. at 276. Similarly, it is now indisputable that the power to regulate interstate commerce includes the power to promote interstate commerce. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964) (upholding congressional decision to "promote" interstate commerce by eradicating discriminatory practices that "obstruct" channels of commerce). "The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions therein." Wickard v. Filburn, 317 U.S. 111, 128, 87 L. Ed. 122, 63 S. Ct. 82 (1942).

Defendant does not challenge the rationality of the congressional finding that beef moves through interstate commerce and has a substantial effect on interstate commerce. Instead, defendant disputes that the Act is "regulatory" at all. He asserts that Congress has "created a trade association which is designed to benefit private industry," which "exceeds any grant of regulatory power to Congress." We disagree. Congress established the Beef Promotion and Research Program to "strengthen and expand" the nation's beef markets. A regulation of commerce includes a congressional attempt to bolster the public image of a product in order to increase consumer demand. In the past, Congress has permissibly regulated commerce by influencing the supply side of agricultural markets by using devices such as production quotas, see Wickard v. Filburn, 317 U.S. at 128 (Congress may have properly considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices), low-interest loans to producers, see 7 U.S.C. § 1447, and subsidies dictated by the federal government, see United States v. Rock Royal Co-Op., 307 U.S. 533, 554-55, 59 S. Ct. 993, 83 L. Ed. 1446 (1939) (Order No. 27 of Agricultural Marketing Agreement Act of 1937 permissibly required milk "handlers" to pay into producer settlement fund difference between minimum price and "uniform price" so that producers in all areas receive uniform price). Congress has, in addition, "stabilized" interstate commerce using direct price controls. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393-94, 84 L. Ed. 1263, 60 S. Ct. 907 (1940). Congress has also stimulated the demand side of agricultural markets by creating demand in the form of direct government purchases. See 7 U.S.C. § 1447 (Supp. I 1983) (authorizing Secretary of Agriculture to purchase from producers agricultural commodities not in excess of 90% of the parity price). In enacting the Beef Promotion Act, Congress has chosen to "promote" and "stimulate" the demand side of the market indirectly, by influencing consumer attitudes towards beef.*fn5 That this is an "indirect" rather than a "direct" form of regulation does not, by itself, render it invalid. The distinction between "indirect" and "direct" regulations of commerce, once at the core of commerce clause analysis, see, e.g., Carter v. Carter Coal, 298 U.S. 238, 80 L. Ed. 1160, 56 S. Ct. 855 (1936) (legislation regulating maximum wages and minimum hours in coal mines invalid as it regulates production, which has only an "indirect" effect on commerce), has long been discredited, see Wickard v. Filburn, 317 U.S. at 128.

As part of its power to regulate interstate commerce, Congress may also regulate "activities" affecting commerce. See Katzenbach v. McClung, 379 U.S. at 301, 303-04. Accord Hodel v. Virginia Surface Mining, 452 U.S. at 276. In urging that the Beef Promotion Act is unconstitutional, defendant claims that no "activity" is being regulated. We disagree. Implicit in Frame's argument is the fallacy that Congress must particularize the activity being regulated. Not only has Frame failed to cite a case where courts have invalidated an act of Congress because of its failure to specify the "activity" being regulated, the case law suggests that such specification is unnecessary. In upholding Title II of the Civil Rights Act of 1964, the Supreme Court characterized the "activity" being regulated as "interstate travel," "public accommodations," and "discriminatory practices," thus implicitly suggesting that Congress need not identify with particularity the "activity" being regulated. See Heart of Atlanta Motel, 379 U.S. at 251-53. Likewise, we decline to invalidate an otherwise lawful exercise of the commerce power on the basis Congress has not specified whether it is regulating the "activity" of "consumer beef purchases," "interstate beef sales," or "national beef markets." Each activity is related, and is validly regulated by Congress.

Our only remaining inquiry is whether there is a rational connection between the regulatory means selected and the asserted ends. See Hodel v. Virginia Surface Mining, 452 U.S. at 276; see also Heart of Atlanta Motel, 379 U.S. at 261 ("How obstructions in commerce may be removed -- what means are to be employed -- is within the soundand exclusive discretion of Congress."). To stimulate the demand for beef, the lack of which Congress has determined is harming the beef industry, Congress has chosen from its arsenal of regulatory means promotion and advertising, research, consumer information and industry information. These endeavors are rationally related to the maintenance and expansion of the nation's beef markets. Consequently, we hold that the Beef Promotion Act is a valid exercise of congressional power to regulate interstate commerce.

B. Validity of Referendum Provision

The Beef Promotion Act provision calling for an industry referendum following a period in which the promotional order was in effect, 7 U.S.C. § 2906(a), is almost identical to other referendum provisions that have been approved by the Supreme Court. As the Court held in Currin v. Wallace, 306 U.S. 1, 15, 83 L. Ed. 441, 59 S. Ct. 379 (1939), an industry referendum "does not involve any delegation of legislative authority." In upholding the statute at issue in Currin, which provided that restrictions upon the marketing of tobacco were to become effective only upon a favorable vote by two-thirds of the growers, the Court explained that

Congress . . . [had] [exercised] its legislative authority in making the regulation and in prescribing the conditions of its application. The required favorable vote upon the referendum was one of those provisions.

Id. at 16. Accord Wickard v. Filburn, 317 U.S. at 117-18 (upheld validity of referendum of wheat farmers conducted pursuant to Agricultural Adjustment Act of 1938); United States v. Rock Royal Co-op., 307 U.S. at 577 (upheld referendum provision of Agricultural Marketing Agreement Act). See also Parker v. Brown, 317 U.S. 341, 352, 87 L. Ed. 315, 63 S. Ct. 307 (1943) (reasoning that law which became effective only on a majority vote of producers was exercise of legislative power by the state, not by producers). Accordingly, we hold that the referendum provision here, exercised pursuant to Congress' commerce power, is a valid condition upon the application of the Beef Promotion Act and not an unlawful delegation of power.

C. Assessment Collection and Spending Proposals by Cattlemen's Board

It is plain that the Beef Act does not unlawfully delegate legislative authority to the Secretary. "So long as Congress provides an administrative agency with standards guiding its action such that a court could ascertain whether the will of Congress had been obeyed, no delegation of legislative power has occurred." Skinner v. Mid-America Pipeline, 490 U.S. 212, 109 S. Ct. 1726, 1731, 104 L. Ed. 2d 250 (citing Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989)). In the Beef Promotion Act, Congress has done more than provide standards for the administration of the Act; it has set forth with unusual specificity the terms of the Act's implementation. Most importantly, Congress itself has set the amount of assessments at $1.00 per head of cattle, 7 U.S.C. § 2904(8) (C). Similarly, Congress has provided detailed procedures for determining the membership of the Cattlemen's Board and the Operating Committee. See 7 U.S.C. § 2904(4) (A). In sum, under the Beef Promotion Act, Congress has delegated to the Secretary far less discretion than the Supreme Court has previously sanctioned in applying the non-delegation doctrine. See Skinner v. Mid-America Pipeline, 109 S. Ct. at 1731 (citing Lichter v. United States, 334 U.S. 742, 778-86, 92 L. Ed. 1694, 68 S. Ct. 1294 (1948) (upholding delegation of authority to War Department to recover "excessive profits" earned on military contracts); Yakus v. United States, 321 U.S. 414, 420, 426-27, 88 L. Ed. 834, 64 S. Ct. 660 (1944) (upholding delegation of authority to the Price Administrator to fix prices of commodities that "will be generally fair and equitable and will effectuate the purposes" of the congressional enactment); FCC v. Hope Natural Gas Co., 320 U.S. 591, 600-01, 88 L. Ed. 333, 64 S. Ct. 281 (1944) (upholding delegation to Federal Power Commission to determine "just and reasonable" rates)).

Nor has Congress unlawfully delegated its legislative authority to members of the beef industry merely because the Cattlemen's Board is authorized to collect assessments and to take the initiative in planning how those funds will be spent. In Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 84 L. Ed. 1263, 60 S. Ct. 907, the Supreme Court upheld a provision of the Bituminous Coal Act of 1937 that assigned a similar function to members of the coal industry. Under that Act, coal producers were organized under the Bituminous Coal Code and authorized to fix minimum prices for code members in accordance with stated standards. Id. at 388. The prices set by the Code became effective upon approval or modification of the National Bituminous Coal Commission, the government agency charged with administering the Act. Id. In upholding the Act against the challenge that Congress had unlawfully delegated legislative authority to members of the coal industry, the Court stated:

The members of the code function subordinately to the Commission. [The Commission] not the code authorities, determines the prices. And it has authority and surveillance over the activities of these authorities. Since law-making is not entrusted to the industry, this statutory scheme is unquestionably valid.

Id. at 399.

Applying this standard to the Beef Promotion Act, we find that the amount of government oversight of the program is considerable, and conclude that no law-making authority has been entrusted to the members of the beef industry. Both the Act and the Order render the actions of the Cattlemen's Board subject to the Secretary's pervasive surveillance and authority. Board members are appointed by the Secretary, 7 U.S.C § 2904(1); 7 C.F.R. § 1260.141(b), while members of both the Board and the Operating Committee may be removed "if the Secretary determines that the person's continued service would be detrimental to the purposes of the Act." 7 C.F.R. § 1260.212. The Board, as well as the Operating Committee, must give the Secretary notice of its meetings "in order that the Secretary or his representative may attend such meetings." 7 C.F.R. §§ 1260.150(m), 1260.169(h). In addition, the Board and the Committee are required to prepare an annual report to be made public, 7 C.F.R. §§ 1260.150(k), 1260.169(g), and the Board is required to submit to the Secretary for each fiscal period an audit of its activities, 7 C.F.R. § 1260.150(1). Furthermore, all budgets, plans or projects approved by the Board become effective only upon final approval by the Secretary. 7 U.S.C. § 2904(4)(C). Similarly, no contracts for the implementation of any plans may be entered into without the Secretary's approval. 7 U.S.C. §§ 2906(6)(A) & (B); 7 C.F.R. §§ 1260.150(f) & (g), 1260.168(e) & (f).

Therefore, we hold that the Beef Promotion Act does not constitute an unlawful delegation of legislative authority. In essence, the Cattlemen's Board and the Operating Committee serve an advisory function, and in the case of collection of assessments, a ministerial one. Congress itself has set the amount of the assessments, while ultimately, it is the Secretary who decides how the funds will be spent.

III. THE FIRST AMENDMENT

Relying primarily on Abood v. Detroit Bd. of Education, 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977), Frame argues that the Beef Promotion Act violates his rights of free association and free speech under the First Amendment. More specifically, Frame asserts that his associational rights are violated because:

The [Beef Promotion Board] is engaging in a nationwide media campaign designed to increase the national consumption of beef, and beef products. The Appellants have no desire to participate in this program, disagree with its message and methods, and want no part of any association, express or implied[,] with this government created trade association.*fn6

Similarly, Frame asserts that the Act breaches his constitutional right to refrain from speaking, because it compels him to participate administratively and financially in the promotion of a cause (an advertising campaign "to strengthen and preserve the position of beef and beef products in the marketplace") and a message (the consumption of beef is "desirable, healthy, nutritious") with which he disagrees.

The district court determined that defendant's first amendment rights had been neither burdened nor violated. The court reasoned that the speech authorized and funded by the Act was "government speech," which does not coerce the private individual to endorse an ideological position, but merely communicates the viewpoint of the federal government. 658 F. Supp. at 1482. The government, the court concluded, is "using defendants' money to erect its own billboard." Id. The district court noted the policy considerations supporting its decision:

Many citizens may disagree with the government's position on controversial issues. The first amendment stands ready to protect their right to voice their disagreement. However, it would indeed be a strange result to invoke the same amendment to limit the right of the government to express its views by requiring that the government allow any individual ...


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