Kangaroo courts are coming…

My opinion since moving to Washington, DC – where you can’t swing a dead cat without hitting a law school graduate – is the world has enough lawyers.  However, there are times when lawyers are welcome because they’re very necessary.  Today there’s an animal rights initiative just getting legs and its success or failure will likely hinge on whoever has the most – and best – lawyers.  I’m talking about the legal concept of animal “personhood.” Stick with me; this may be esoteric and sound comical, but the threat is nevertheless very real.

“Personhood” under law recognizes only a natural person or “legal personality” has rights, protections, privileges, responsibilities, and legal liability. “Personhood,” according to one legal journal, “continues to be a topic of international debate, and has been questioned during the abolition of slavery and the fight for women’s rights, in debates about abortion, fetal rights and reproductive rights (and) in animal rights activism…” (my emphasis).

In the 1980s-90s, we beat back an aggressive campaign by PETA and other animal rights groups to achieve “standing” in federal courts to sue on behalf of animals those who transgressed the animal rights philosophy, e.g. biomedical researchers, farmers and ranchers, zoos, rodeos and other legitimate users of animals. We watched class action suits filed on behalf of unnamed millions of consumers and lots of animals dismissed because the wannabe plaintiffs had no standing.

In the early 2000s, animal rights and real world lawyers sought to change companion animals’ legal status from property owned by someone to animals as semi-persons who enjoy not an owner but a “guardian.” Some California towns actually enshrined part of this philosophy in local law. The push was to allow owners who brought suit in cases of veterinary negligence or other wrongful acts to sue not just for the property value of the animal lost as is the case today, but for noneconomic damages, i.e. emotional distress, loss of companionship, etc. While pets don’t enjoy “personhood,” there is a trend in the courts to ignore the animals’ legal status and award non-economic damages.

The whole animal-as-person effort is the brainchild of Steven Wise. Wise, who’s practiced animal law for over 30 years, heads his own group called the Nonhuman Rights Project (http://www.nonhumanrightsproject.org/). In his own words:

“Our mission is to change the common law status of at least some nonhuman animals from mere ‘things,’ which lack the capacity to possess any legal right, to ‘persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them…The most powerful ram…is the litigating of the capacity for legal rights of those nonhuman animals who are both the most cognitively complex (they have extraordinary minds) and the most cognitively similar to humans. These include the four species of great apes, dolphins and whales, elephants, and African Grey parrots.”

Wise’s goal is to litigate state by state on behalf of “smart” animals, his targets chosen based on the evolution of common law in that state and whether there’s a “plaintiff” of sufficient standing. He’s filed three cases in New York, lost one on appeal and the other two appeals are pending. It will only take one or two successes for there to be sea change in the legal status animals, including those we raise for food, use in research to find cures and treatments or those who educate and entertain us.

Animal agriculture must pay attention to this legal threat now. This sounds fanciful, even ridiculous, but remember at least two European nations amended their national constitutions to recognize animals as “sentient creatures.” Remember there exists the Animal Legal Defense Fund (ALDF) to provide pro bono (free) legal assistance to animal rights groups, that HSUS and TV game show host Bob Barker have spent literally millions of dollars endowing “animal law” chairs at some of this country’s biggest and most prestigious law schools, and the American Bar Association (ABA) has an “animal law committee” and the majority of its members aren’t our industry’s best legal minds.

Which brings us back to lawyers, numbers and talent. We need to find working attorneys willing to donate – yes, I said donate – time and talent to help us prepare for this assault before someone files a personhood suit on behalf of pigs – deemed by those in the animal rights movement as one of the most intelligent animals we routinely kill and eat.

We need young attorneys and law school students to help us – and the rest of legal animal users – to maintain our legal rights and protections. We’re fortunate to have the National Agricultural Law Center at the University of Arkansas (http://nationalaglawcenter.org/). This is a group which needs our attention, our support and our donations. I have a feeling it may be our version of ALDF one day in the future.

Check out the websites I’ve listed; check the Internet and newsfeeds for “animal law” and “animal personhood.” It’s a serious issue – at least for the other side – and one that gives the term “kangaroo court” a whole new meaning.

 

Corporate common sense

They’re either signs of the Apocalypse or there is hope for fact-based, risk-based decision making in the retail end of the food chain. Anyone whose read this space over time knows one of my biggest beefs is big retailers who make truly inane, almost anti-producer public relations decisions based on activist rants, demands and threats. I’ve opined I want to see retailers grow some backbone, ignore the corporate blackmail and stand with farmers and ranchers as part of the team that feeds us all.

Given I’m an eternal optimist, I take as signs of hope a telephone call and an email received over the last month from two retail companies – big boys, I assure you – wanting to know the science underlying two technology breakthroughs in agricultural production. They didn’t want to simply confirm these technologies are safe, they wanted to know the underlying science, studies, etc., and they wanted third party experts who can objectively speak to the technology, its pros and cons, its safety, sustainability and its benefits.

I quizzed both as to motivation. I received pretty much the same answer from both: If the technology is scientifically sound, if it’s safe and if the benefit to food safety, quality, productivity is well-founded, then these factors must be part of the decision-making process on whether they’ll offer foods produced using these new technologies.

I asked them about activist demands they refuse the technology under threat of public relations hell. Both implied they either rarely pay attention to corporate intimidation, or their philosophy of due diligence includes looking objectively at both sides of food technology issues.

While I’d hoped they’d both tell me they were sick and tired of being kicked around by activist groups threatening negative public relations, the more I thought about it the more I understand these corporate attitudes are about as fair as we can expect in the battle to introduce new, efficient and safe technologies to food production.

One company rep talked about preparing for the long-term sustainability of its product offerings. He said in some cases it’s as simple as conventional production allowing a product to be sold for X, while the new technology allows for a lower price point of Y, translating to better margins based on sales projections. It’s also a matter of maintaining inventory across multiple outlets, and fundamentally, providing the customer what he/she wants at a price they’re willing to spend.

For animal agriculture this translates to transparency. One of my first requirements of any client trying to get a new technology through the maze of federal approval, particularly applications that may generate consumer confusion or fear, is 110% transparency. It also needs to include early outreach to the folks who will eventually sell what that technology provides, first, to ensure no one in corporate PR or advertising freaks out and more importantly, to allow the company to answer straightforwardly questions from customers, media and yes, activists.

So, perhaps common sense is beginning to prevail, and the days of the short-term “give-them-something-and-make-them-go-away” attitude about anti-technology, anti-animal agriculture demands is on the way out. A level playing field on such issues is all we’ve ever asked.

 

Biotech – Good, bad?

This is a week filled with the regulatory and public schizophrenia over biotechnology. Lawmakers at a House Appropriations Committee hearing hammered regulators on when/how USDA is going to speed up the process of “deregulating” genetically modified (GM) plant traits so that new varieties designed to withstand drought, disease, pests, etc. can be moved into farmers’ fields. At the same time, the Associated Press published a story about the future of GM food animals and the hurdles that segment of biotechnology faces.

Full disclosure: I lobby for a developer GM animals; I lobbied for FDA completion and approval of the animal cloning food safety risk assessment a few years back. For a lay person, I know relatively a lot about animal biotechnology, what it is, what it isn’t, what it can do and what it can’t. I support biotechnology and its promise and did before I worked for the companies mentioned above.

Two points in the AP story jump out at me. First is the statement by a representative of Friends of the Earth, a staunch opponent of all things biotech. “Where is all of this going to end up? Where do we draw the line?” she says. The article’s author says GM animals are an “ethical” issue.

As to whether genetic modification of an animal is an ethical issue, I agree. However, to me the ethical issue goes to the professionalism and transparency with which the technology is applied. I contend if the modification is objectively vetted by FDA and/or USDA, is based on sound, replicable science, poses no risk to the animal, man or the environment, and brings benefits and solutions to challenges confronting the same three targets, then there is no ethical dilemma worth discussing.

That there is “visceral” reaction to genetic modification of food animals that doesn’t exist with GM plants is obvious – plants don’t have identities. However, the need to evangelize your personal reaction or that of your group using propaganda or half-truths creates an “ethical” confusion where none need exist if the discussion over the biotechnology and its benefits is moderate. Reasonable people can disagree; name calling, vilification and scaremongering have no place in this arena. Consumers lose in these battles.

The second point in the AP story that struck me was the lack of a predictable U.S. regulatory pathway – on that is objective and science-based – is sending this American-born technology overseas, costing U.S. tax dollars and jobs. A GM goat producing milk to fight childhood diarrhea in developing nations is no longer under development in California, but is now at home in Brazil. “You can’t get (investor) funding in this country because you can’t get regulation,” says the goat’s developer. The “enviropig” modified to be “cleaner in its environment” lives in Canada because the company’s investors are concerned about the length of FDA’s approval process. The GM salmon has been under FDA review for nearly 15 years.

According to international development, hunger and food security expert, Dr. Calestous Juma, Harvard University, the role of biotechnology represents “one of the key tools that could enable humanity to expand protein production in a sustainable way.” He chastised those who try to politicize the FDA review/approval process, saying to not protect FDA’s from political pressures is to surrender our global reputation and leadership.

I have a friend who’s a PhD biotech wizard. He was asked by a critic of the technology if “the industry” is trying to clone humans. His response was “not that I’m aware of. I’m not interested in doing that.” The critic’s challenge continued, and finally my friend asked the gentleman, “Do you eat meat?” The critic acknowledged he was a carnivore. My friend amended his question, “Do you eat human meat?” The critic was dumbstruck.

This is the metaphorical answer to where do we draw the line. It has to do with standards and ethics. As my friend concluded, “There are many things we can do in a lot of different areas. However, we have moral compasses. Just because we can do it, doesn’t mean we would do it.”

 

To PAC or not to PAC

Given we’re about midway through the current two-year election cycle and it’s about seven months from the midterm congressional elections, I’m going to steal and modify an old business management axiom on whether a company or association should have a political action committee (PAC). It goes like this: If you’ve got a PAC, get rid of it; if you don’t have a PAC, by all means get one.

My cynical self reasons PACs have a simple function: They help to elect friends and defeat – or prevent election – of enemies. It’s all about enlightened self-interest; you want a Congress which supports your organization’s philosophy of government, entitlement programs and economy. That on its face is not a bad thing.

You can have a corporate PAC, an individual member organization PAC, a general PAC, there’s a PAC for everyone. Businesses have PACs, farmers and ranchers have PACs, environmental, animal rights and consumer “protection” groups have PACs, teachers and social movements have PACs. There are federal rules applying to all, and there are rules specific to the type of PAC and the candidates supported.

I’ve managed PACs for a long time, and from an administrative standpoint they’re a royal pain. Fundraising (ugh), accounting (more ugh), Federal Election Commission (FEC) reporting (ugh again). There’s “event participation,” a seemingly endless stream of mind-numbing campaign breakfasts, lunches, dinners, receptions and meet-and-greets for congressional hopefuls, all in hopes your face and affiliation sticks in the candidate’s mind. Get a candidate in a candid moment and he/she will generally confess fundraising is the worst part of running for office.

PAC critics contend these financial machines are just a way to buy votes.  To this I say, bunkum. Strict contribution limits seriously mitigate the degree of “influence” a PAC contribution buys.  Plus, companies and associations are every bit as successful representing their interests in passing good legislation and preventing bad legislation  having never spent a PAC dollar.

Likely the biggest advantage is access. Campaign supporters by natural law get attention from the person receiving the support. If you’re a reliable supporter and have supported a member over time, you’ll likely get that call back before the newbie PAC supporter and almost assuredly before someone who’s never written a check. Notice I said “attention,” not necessarily support that translates to votes in your favor.

AgriPulse this week published its annual ag PAC review, as in who has the PACs, how much money have they raised and how have they contributed by party.  Anyone who wants to see the specifics of any PAC registered with the FEC – from President Obama down through the newest House member or the largest corporation or activist group – can find dollars raised and dollars spent by going to www.fec.gov and following the financial disclosure prompts.

Using FEC data compiled by the Center for Responsive Politics (CRP) – a fascinating website for political junkies – it’s not surprising that as this point in the two-year election cycle, two-thirds of agriculture PAC dollars — $8.3 million contributed so far in 2013-2014 – have gone to Republicans, with most being pocketed by incumbents. This probably reflects the conservative nature of aggies and business in general, but also, I think, frustration with congressional deadlock and inaction, and a general feeling of neglect among the food and ag sector when it comes to the sitting Administration. However, AgriPulse reports that prior to 2012 – going back 20 years – Democrats collected the majority of ag support.

The good PACs eschew notions of straight partisan giving and “incumbent-only” contributions. Good PACs do their homework, research the candidates six ways from Sunday, take into account the real world chances of victory and then make an appropriate PAC investments. To do otherwise is lazy, and reflects a lack of intestinal fortitude.

To invest in incumbents can be the only logical way to go, particularly if that member has held the seat for several terms, has earned seniority, sits on committees controlling your or your employer’s economic fate, and who consistently wins reelection with over 65% of the vote. However, to avoid contributing to a bright challenger out there is short-sighted and a waste of PAC dollars if your support of the incumbent is simply the “safe” move.

I like to see PAC accounts showing 60-40 or so partisan splits and a good chunk of challenger support. I like to see support shifts from one cycle to another. I look to the moderate side of both parties. I’ve met more than my share of ag-ignorant GOPers who support animal rights and other non-ag friendly issues, while I can create the same list of “odd” Democrats who march in CYA lockstep and who know less about where food comes from than the average 12 year-old.

 

Do not fear the press release

A bizarre fear grips regulated industries in Washington, DC, no matter the industry or the political bent of the sitting Administration. It’s called “fear of reprisal,” and it means industries will not publicly – and often privately – challenge the actions or decisions of a government department or agency, no matter how silly or stupid those actions are thought to be, for fear the agency or Administration will do them regulatory harm, as in delay review of an application, pull off a “surprise” inspection of a plant, or other such punishment.

I’ve never asked a regulator about this phenomenon; however, I hear it voiced often at industry meetings when hard edged strategies are suggested. Being a former reporter, I’ve asked various industry reps for examples of companies victimized by vengeful regulators for disagreeing publicly with a policy or decision. I never heard a first-hand account.

I suspect the departments and agencies are well aware of – and may in fact count upon – the industry shying away from any type of public showdown or criticism. I don’t believe most regulators sit around thinking of ways to harass or “punish” industry or foster the notion all regulatory decisions carry implied threats if opposed. However, I’ve met my share of male and female regulatory Napoleons.

Just the reverse seems to be true if an activist group of any stripe with a hot media machine and blind eye to all but your own philosophy/politics gets its back up. I’ve seen regulatory agencies over the years – and in some cases the White House – do back flips to keep one or more chest-thumping activist groups (we call them “NGOs” – nongovernment organizations) from cranking up the media machine and raining all kinds of ugly on the politicians or bureaucrats.

Again let me say this is an apolitical rant, but my experience tells me if governments reacted to activist opinion/demand and implied threats of negative media as they do to industry pleas or threats of political interference, we’d have better policies, more practical regulations and overall better government. So why does the bureaucracy fear activist indignation and not that of industry? In the grand scheme of things, our weakness is our roundheadedness. We follow the rules of engagement; the other side generally does not.

Political issue “management” assumes industry won’t rock the boat because, in part, of the revenge fear I described. The NGO can say what it wants to whom it wants with general impunity. The agency/department may know full well the NGO’s public accusations are 100% incorrect, dishonest or both. However, when was the last time you heard any government entity – local, state or federal – call out a bogus claim of an NGO?

The offending NGOs are self-proclaimed “grassroots” groups with “consumer,” “safety,” “welfare” or “environment” in their titles which loudly and often declare with great hubris they are the David to the industry/government Goliath, existing to “protect” consumers, the environment, animals or another “voiceless” group. They claim memberships in the millions, implying they control how all of those millions will vote in any election. They exist by raising baskets of tax-deductible dollars off consumer fears of the next real or concocted safety, environmental or economic crisis.

These NGOs are successful because politicians are predictable in their rabbit-like reaction to an actual or threatened media assault on their character. Success is also pegged to a predictable general media swarm to these attacks likes sharks to chum. The press multiplies the wrath/claims of these groups across the 24/7 news cycle, at the same feeding the considerable egos of the groups’ founders or principals. Ask yourself this – how many times have you read a newspaper story or seen a TV segment about something directly affecting or about animal agriculture and the only “source” reporting – other than maybe the government — is from an anti-industry NGO?

Politicians and bureaucrats understand you never make 100% of the people happy 100% of the time. They know they’re in for inflammatory press releases accusing them of destroying the environment, poisoning citizens or giving every 12-year-old a gun, a box of ammo and a six-pack. Hop to the industry side of the political spectrum, and the politico hears he/she is out destroy free enterprise, eliminate jobs, throw families into the street and/or cheer the end of capitalism as we know it. This is part of the gig you signed on for.

If the attacks from either side of an issue are worthy of response, let it be an honest one. If the allegation is wrong, say it’s wrong. If you did a good job, claim the credit and let it be your testimony. Tell the media to check its facts, or provide the facts that balance the story. The responsibility to take a difficult policy stance or render an objective program decision should never be abdicated by sitting on our thumbs out of fear of “public reaction.”

 

Food Regs Have Costs

I read this week an article in one Capitol Hill rags about the “Food Industry Under Siege,” the premise of which is the Obama Administration – “arguably the most active on food policy in the past century” – has issued so many new rules, new proposals and new requirements for the industry, the effort results in “an intensifying battle royal against the food industry.”

However, the article makes one very dangerous assumption, albeit a common one when articles are penned about the “food industry,” and that is the industry is all big, multinational companies and that the pockets that will absorb the billions in added costs are the deep, deep pockets exclusive to fat, rich corporations.  Nowhere in the article does the author question the need for some of these new rules, the benefit to consumers of the new proposals, the impetus for some of these changes and the inevitable result of regulation per se, i.e. higher costs at the supermarket.

First, while regulators are sometimes fairly secular in their thinking, they must always remember the food industry begins on the farm and ends when the consumer unpacks grocery bags at home. The industry is not just multinational food processors, it includes restaurants, whether high-end or fast food; it includes those who provide food to schools and other institutions, and it includes everyone who takes what the farmer/rancher produces and turns it into what the commercial retailer and institution supplier sells.

Regulations on the food industry must take into account the industry is a farm-to-fork phenomenon, ergo higher costs anywhere along the chain from farmer to retailer mean higher costs or lower returns for each link in the chain. This is not just a scenario of fat corporations bemoaning a drop in profits from obscene to merely excessive.

No industry and no regulatory scheme are perfect, and much about food regulation has needed updating for several years. This is why the broad food industry worked to enact the Food Safety Modernization Act (FSMA) in 2012.  The entire food industry supported this modernization effort knowing full well these necessary, new regulations would bring new costs. We just hoped those costs would be a small price to pay for a better system.  However, this “siege” mentality must objectively question the need/benefit of new and/or different regulations so that unnecessary and generally disproportionately high costs of compliance – and the inevitable pass-through of such costs to consumers – are avoided.

Given these rules are to benefit consumers – and we’re all consumers – the true benefit of new rules must be that they responsibly fill a void that truly needs to be filled. They mustn’t be promulgated because a group believes “the consumer has a right to know” or because they placate an activist group with an active public relations machine.  At all times such rulemakings must take into account not only the real needs being met, but also the costs of meeting that need. The cost of  compliance is inevitably, in whole or part, passed along to the ultimate purchaser.

Keep in mind the real pain of the cost of valueless or unnecessary regulation ultimately falls on those least likely to afford higher food costs. Ultimately, it means very little if you win the “battle royal against the food industry” and that victory translates into pricing products out of the reach of most consumers, the very folks change advocates claim to be protecting.

 

Order in the court…

The assault on U.S. food production by activists in search of gustatory nirvana is expanding, much to the consternation of big food processors and retailers.  No longer satisfied to attack on-farm production practices and the alleged inherent inhumanity of farmers and ranchers, this new, multifront strategy seeks to drag the food retailers/processors into the courtroom, while relishing the negative publicity such action brings to the industry.

As much as I enjoyed this week’s “what-if-you-gave-a-press-conference-and-nobody-cared” scenario surrounding the Humane Society of the U.S.’s (HSUS) latest “undercover” video allegedly shot on a Kentucky pig farm,  I’ve watched the activist shift from barnyard to courtroom with interest.  Branded product producers, food processors and retailers should wake up quickly to the fact you can no longer hide behind conciliatory press releases and “clever” marketing to avoid the dreaded NGO with a pro bono lawyer.

A food industry trade magazine reported February 14, grocery giant Kroger Co. is the target of a proposed class action suit filed by DC-based Compassion over Killing (COK) in Los Angeles County Superior Court.  The proposed action alleges Kroger’s marketing of “Simple Truth” brand chicken – promoted, the plaintiff says, as raised “cage-free in a humane environment” – is deceptive, misleading and violates California consumer protection laws.  Why? Because despite the marketing claim – remember, all broiler chickens are raised cage free – Kroger’s “Simple Truth” chickens, supplied by a Perdue Farms plant in Kentucky, are treated “the same as other mass-produced birds” according to the complaint, the article says.

Keep in mind marketing claims are not the same as label claims when it comes to the fight for your food dollar.  For instance,  USDA labeling regulations generally don’t permit a company to make a humaneness or outright food safety claim on a label. You can’t label something as “raised humanely” or “more humanely” or “our guacamole/peanut butter spread won’t make you sick like the other one.”  However, marketing claims in print, on TV or on websites –  activists routinely patrol farm and food industry websites for animal welfare claims – are kind of the Wild West of advertising/marketing for just about any product out there.  HSUS, for instance, is very good at filing Federal Trade Commission (FTC) complaints against groups/companies whose standards it finds lacking and, of course, then putting out a press release.

Both animal rights groups pushing “humane” on-farm production practices and producers trying to distinguish themselves from competition have seized on USDA’s Process Verified Program (PVP) as a marketing tool.  What’s important to know about PVP, however, is that while the program is rigorous, what it boils down to is it’s a department evaluation of whether the system proposed by a company upon which claims will be made is doable within the rules of the program.

USDA evaluates the company PVP application, inspects to see if the actions folks must carry out as part of the company’s claim are real and achievable, but – and this is a BIG but – USDA PVP is essentially agnostic as the program’s necessity or merit.  USDA does NOT take a public or private position or make any value judgment on whether a PVP’s program is good or bad, better or worse, only if the program mechanics are doable and the program/claims do not break the law.

I’ve counseled company clients for years that to succumb to the notion you can appease activists with a “give-them-something-make-them-go-away” strategy is to try and manage these attacks using short-term advertising/PR think. This approach inevitably fails.

Once you’ve shown weakness, you’ve thrown chum into a tank of sharks.  The activist may rest easy, swimming around you in lazy circles after the first or second chomp, but they’ll come back and demand a bigger bite time and again; in some cases, it’s the strategic equivalent of being nibbled to death by ducks.

Consider this first COK action a wakeup call to the industry across the board, from farm to board room. This should be an alarm sounding loudly to warn you not only that these lawsuits will proliferate like rabbits across the country, but if you’re contemplating “giving them something,” it may be more than you think.

 

Implementing the Farm Bill will be a challenge

Commentary.

The pain in the rear that has been the evolving Farm Bill for three years didn’t end when President Obama signed the bill at Michigan State University (MSU) last week, which for those not in the know is Senate Ag Committee Chair Debbie Stabenow’s (D, MI) alma mater and the first U.S. land grant university. The lingering, dull ache overcome with that act may actually pale in comparison to sharp pain which may emanate from USDA’s implementation of the 2014 omnibus farm law.

In rereading that paragraph, it sounds as if I’m prejudging, i.e. unsure of, USDA’s ability to get the new programs up and running. Let me say up front, this is not the assumption. The true program experts within USDA are the career folks; they’ve survived other administrations, implemented a fair share of farm bills, so fingers crossed the Administration pays attention to these in-house experts.

What I’m concerned about is the sheer volume of work to implement the new Farm Bill given the massive rewrites of crop, dairy, crop insurance and various other key programs, particularly given some pretty tight deadlines the department faces. And it’s not just the volume of work USDA must accomplish in a relatively narrow time frame, but the fact it must achieve all this under the eagle eye of the industry it regulates, as well as the backseat driving of Congress.

Secretary of Agriculture Tom Vilsack did the first smart thing, beginning virtual implementation of the Farm Bill – in all its variations – some months ago. His second smart act was to put Deputy Secretary Krysta Harden – experienced and wicked smart – in charge of wrangling the department’s implementation working groups. Vilsack will take these collective good works and package them for White House sign-off. His third smart move was to “lend” the White House Domestic Policy Council several key USDA regulators and administrators to ensure the White House folks actually understand what they’re supposed to be approving.

As said, time is not on USDA’s side. The heaviest lift will be getting the two insurance-based income support programs that replace direct payments developed and in place by spring planting time, which for southern producers is just a few weeks away. The department must also factor in cross-compliance with crop insurance and conservation program participation.

The unfinished payment limitation section of the bill will be the true test of USDA’s political and program savvy. While the rewritten limits on how much an individual or couple may receive in federal payments are tucked into the new Farm Bill, the key to how this section operates is the phrase “actively engaged.” A producer or farm couple must demonstrate active engagement in the farm’s operation to qualify for any payments, and in past Farm Bill’s this definition was always fairly loose. Farm Bill conferees, however, couldn’t agree on how to tighten this definition, so they punted the rewrite to USDA. I don’t envy the poor soul charged with coming up with the words that will make Sen. Chuck Grassley (R, IA), the avenging spirit of payment limitations, and the crop and general farm groups happy.

The old menu of dairy support programs disappears and in its place will emerge the new dairy margin insurance program. The deadline for this transformation is September. However, to get from point A to point B, a new insurance product must be developed; base production acres for every individual producer in the new program must be calculated or updated, and the circumstances under which USDA will – “on the very rare occasion” – step in to buy surplus production need to be invented.

And while previous iterations of livestock disaster assistance programs existed in the 2008 Farm Bill, changes by lawmakers to these programs in the 2014 bill may interfere with achieving “expedited” implementation of these disaster assistance programs as requested this week by 24 Senators. Vilsack, following the law, told one publication this week the assistance programs in question, due to the rewrites, require USDA restudy to determine if new rules are needed to implement the programs.

Which brings us to the biggest procedural hurdle facing the department and “quick” Farm Bill implementation: The pesky Administrative Procedures Act (APA). It’s the APA that mandates rulemakings and other federal actions be published in the Federal Register in order to collect much needed public comment, among other things.

Nearly all of the new authorities mentioned above will take extensive rulemaking. At the very least this means 30 days of public comment on every single rule developed, and in some cases this could mean comment periods of 30 days for a notice to the affected parties the government intends to write a rule; 30-45 days for a proposed rule, 45-60 days for a proposed final rule, and in rare cases, as much as 60-90 days on the final rule. Consider this – at this writing, one rule implementing the Food Safety Modernization Act at FDA has been in the “notice/comment” phase for 11 months.

If the Farm Bill is so important…

As I type this, President Obama is likely entering the venue at Michigan State University in 13-degree East Lansing where he will begin the formal process of signing the 2014 Farm Bill into law.  On the desk in front of the President is the ceremonial leather binder holding the bill’s title and final pages, next to his left hand will be an array of pens equaling the number of dignitaries who will be gifted with said writing implements.   He will be flanked by state officials, as well as a number of members of Congress involved in enacting the bill – none of them Republican.

Now, before you jump to any partisan conclusions, the dearth of GOPers is not because they weren’t invited; it’s because they chose not to attend.

I suspect the lack of Republicans has the most to do with not relishing a public appearance with the President during an election year.  However, at the risk of sounding petty, if the Farm Bill is as important as lawmakers from both sides of the aisle contended throughout the nearly three-year slog to enactment, then why not see it through to the very end, put your politics aside and haul it to Michigan?

The public reasons given by Republicans for not attending the signing ceremony were scheduling conflicts, the change of venue from the White House to Michigan State didn’t allow enough time to schedule the trip, etc.  Perhaps most honest that of  Sen. Thad Cochran (R, MS), who told one reporter, “It’s a long way. It’s going to be signed whether I’m there or not.”

You can fault timing, you can legitimately argue spending money to put Air Force One in the air to haul the President to Michigan is a waste of tax dollars, and this winter if would be tough to fault anyone for not wanting to go  north when Washington,  DC is a tropical 42 degrees.

Aggies will tell anyone who’ll listen the Farm Bill is not a partisan issue, it’s a series of commodity and regional competition issues, and at least the newly minted law certainly demonstrates that.  In the last election, I can name at least two sitting Senators from ag states who wouldn’t have their jobs if Congress had completed the Farm Bill on schedule.  And polling clearly showed rural voters put the blame on Republicans for not getting the Farm Bill done.  So why wouldn’t the GOP seize the opportunity to polish its  image?  Why couldn’t the key players involved in getting the Farm Bill to Obama’s desk rise above the partisan politics and present a bipartisan demonstration of camaraderie?

That picture would have gone a long way to at least trying to convince voters there are those in Congress not hidebound to the election year party line.  Not only would a visual of a bipartisan gaggle of aggie lawmakers smiling broadly – mainly out of relief – as the President signed the hard-fought bill into law be what the public needs to see, it would remind the folks on the street just how vital this five-year package of farm programs, nutrition programs, research, trade incentives and energy development is to their collective and individual qualify of life.

 

 

 

How could the 2018 Farm Bill be worse?

Unless there’s a complete and totally unexpected meltdown in the Senate, the 2014 Farm Bill should be on its way to the President’s desk for his signature by this time next week. Never in my experience was iconic legislation like the quintennial omnibus Farm Bill so plagued by rank politicking and an almost tangible indifference for the bill and its beneficiaries.

I’m not going to get into the nitty gritty of program details or what finally survived the legislative mayhem that got us to this point. All the bill’s details can be found at either agriculture committee website (www.agriculture.senate.gov or www.agriculture.house.gov). I’m going to reflect and bloviate on the process.

I’ve referred to the Farm Bill as the 2012-13-14 Farm Bill. Slated for reauthorization back in 2012 – for a 2013 effective date – the bill moved through the committee process on both sides of the Hill handily. Typical of most farm legislation, differences in policy and program had more to do with size of operations and regional differences than partisan politics. The Senate Agriculture Committee – thanks to the partnership of Chair Debbie Stabenow (D, MI) and then ranking member Sen. Pat Roberts (R, KS), a former chair of the House ag panel – cranked out a progressive bill with strong bipartisan support. Stabenow shepherded it through floor debate deftly, achieving another strong bipartisan vote to approve.

House Agriculture Committee Chair Frank Lucas (R, OK), and former panel chair now ranking member Rep. Collin Peterson (D, MN), rammed their bill through a conventionally rancorous — and entertaining — committee markup and had it ready for the floor in mid-2012 right on schedule. House leadership in the persons of House Speaker John Boehner (R, OH) and Majority Leader Eric Cantor (R, VA) – neither any fan of Farm Bills – mysteriously decided the “votes weren’t there” to pass it, and refused to bring it to the floor. The plaintiff cries of Lucas and Peterson, begging Cantor particularly to get out of the way and let the votes fall where they may, went unheard. Missed was the window for scheduled reauthorization, the 112th Congress ended, and it was clear something “bigger” in Cantor’s mind was on the table.

Come 2013 and the new 113th Congress, Stabenow – this time with a new ranking member in the person of former committee chair Sen. Thad Cochran (R, MS) – reworked her magic from the previous year. Even with tinkering to the previous bill’s commodity title based on aforementioned regional and crop differences, Stabenow got the bill through committee – again – and through Senate floor debate – again – with the same solid bipartisan support. Lucas and Peterson redid their thing, pushing the bill out of committee. It then became a little more obvious Cantor’s fixation was the Supplemental Nutrition Assistance Program (SNAP) – federal food stamps and how to cut the program for only a few of which make sense.

The bill finally went to the House floor carrying something north of $13 billion in SNAP cuts and more than a couple of hundred amendments, an amendment by ag committee member Rep. Jim McGovern (D, MA) to restore the SNAP cuts fails, and Lucas heaves a visible sigh of relief as he senses final passage is at hand. Then Cantor, for reasons understood only by him, signals Rep. Steve Southerland (R, FL) at the 11th hour to offer as the last amendment a requirement all food stamp recipients have jobs or be training for jobs. Greed will get you every time, as Republicans and Democrats ready to vote “aye” on the final bill abandoned the GOP and ran for the Hills, bringing down for the first time a committee-approved Farm Bill.

We went through the silliness of formal House action to strip out the nutrition title, rework it to cut $40 billion out of the program over the next decade, pass the food stamp cuts as a stand-alone bill, and bring up the crippled Farm Bill separately. The previously approved food stamp bill is then rolled back into the Farm Bill, the legislative equivalent of castrating bulls, only to turn around and inject them with growth hormones. It’s apparent all of this falderal was a convoluted scheme to cut the food stamp program more deeply, while holding farmers, ranchers and the income safety net and operating certainty they rely upon hostage, apparently to send a message to the White House, mollify ultraconservative budget hawks and/or make some political statement.

We finally got to conference and this is where Lucas and Stabenow get my vote for outstanding congressional committee chairs. They hammered out a somewhat wobbly marriage of the House and Senate Farm bills. Stabenow gets the award for getting two bills through committee and two bills through floor action, and surviving a Farm Bill conference committee with her optimism intact. Lucas gets the award for tenacity, doggedness and surviving not only the regional and chamber battles of the conference committee, but the incredible indifference of his own party’s leaders.