National Broiler Marketing Ass'n v. United States

Me. Justice Beennan,

concurring.

I join the Court's opinion. I agree that since several of NBMA’s members were not engaged in the production of agriculture as farmers, Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967), compels the holding that NBMA’s activities challenged by the United States cannot be afforded the Sherman Act exemption NBMA asserts. Since that disposition settles this aspect of the suit between the parties, it is unnecessary for the Court to consider, and the Court reserves, the question of “the status under the Act of the fully integrated producer that not only maintains its breeder flock, hatchery, and grow-out facility, but also runs its own processing plant.” Ante, at 828 n. 21. I write separately only to suggest some considerations which bear on this broader question. I do so because the rationale of the dissent necessarily carries . over to that question.

I

The Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291 et seq. (1976 ed.), like the Sherman Act which it modifies, was populist legislation which reacted to the increasing concentrations of economic power which followed on the heels of the industrial revolution. The Sherman Act was the first legislation to deal with the problems of participation of small economic units in an economy increasingly dominated by economic titans. Next enacted was § 6 of the Clayton Act, 38 Stat. 730, lo U. S. C. § 17 (1976 ed.), which provides:

“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and oper*830ation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws.”

This legislation linked industrial labor and farmers as the kind of economic units of individuals for whom it was thought necessary to permit cooperation — cartelization in economic parlance — in order to survive against the economically dominant manufacturing, supplier, and purchasing interests with which they had to interrelate. The failure of § 6 expressly to authorize cooperative marketing activities, and to permit capital stock organizations coverage under it, prompted enactment of the Capper-Volstead Act in 1922 to remedy these omissions. Section 1 of that Act provides, inter alia:

“Persons engaged in the production of agricultural products' as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. . . .”

At the time the Capper-Volstead Act was enacted, farming was not a vertically integrated industry. The economic model was a relatively large number of small, individual, economic farming units which actually tilled the soil and husbanded animals, on the one hand, and, on the other hand, the relatively small number of large economic units which processed the agricultural products and resold them for wholesale and retail distribution. It was the disparity of power between the units at the respective levels of production that spurred *831this congressional action. See, e. g., 62 Cong. Rec. 2257 (1922) (remarks of Sen. Norris). Congress was concerned that the farmer, at the mercy of natural forces on one hand, and the economically dominant processors on the other, was being driven from the land and forced to migrate in ever-increasing numbers to the cities.

“Senator Capper stated a point of view to be found on almost every page of the congressional debate on his bill, ‘Middlemen who buy farm products act collectively as stockholders in corporations owning the business and through their representatives buy of farmers, and if farmers must continue to sell individually to these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market, then farmers must for all time remain at the mercy of the buyers.’ 62 Cong. Rec. 2058 (1922).” Post, at 841 (footnote omitted).

The legislative history makes clear that the regime which Congress created in the Capper-Volstead Act to ameliorate this situation was one of voluntary cooperation. The Act would allow farmers to “ ‘combine with [their] neighbors and cooperate and act as a corporation, following [their] product from the farm as near to the consumer as [they] can, doing away in the meantime with unnecessary machinery and unnecessary middle men.’ That is all this bill attempts to do.” 62 Cong. Rec. 2257 (1922) (remarks of Sen. Norris). As the Court notes, however, “[c]learly, Congress did not intend to extend the benefits of the Act to processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk.” Ante, at 826-827. This fact is demonstrated from several exchanges during the debate clarifying the intent behind the bill and also by the abortive Phipps amendment. In the colloquy between Senators Kellogg and Cum-mins, quoted in extenso, ante, at 823-824, n. 13, an intent not *832to extend the benefits of the bill to processors of agricultural products is clear:

“Mr. CUMMINS . . . Take the flouring mills of Minneapolis: They are engaged in a broad sense, in the production of an agricultural product. The packers are engaged in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
“Mr. KELLOGG: Certainly not_” 62 Cong. Rec. 2052 (1922).

Debate surrounding the proposed Phipps amendment, quoted ante, at 827 n. 19, the effect of which would have been to exempt, for example, sugar refiners with preplanting contracts, yields a similar understanding. Senator Norris, in leading the successful rejection of the amendment, explained: “The amendment ... is simply offered for the purpose of giving to certain manufacturers the right to be immune from any prosecution under the Sherman Antitrust Act. . . . They are not cooperators; they are hot producers; it is not an organization composed of producers who incorporate together to handle their own products; that is not it.” 62 Cong. Rec. 2275 (1922) (emphasis added). These statements show that Congress regarded both “manufacturers of finished agricultural products” and “processors” as ineligible. Whether or not there is a distinction in economic or other terms between “manufacturers” who refine sugar from beets, or “processors” who mill wheat into flour, both groups were thought of as beyond the reach of § 1 — “They are not cooperators.” Thus the legislative history demonstrates that the purpose of the legislation was to permit only individual economic units working at the farm level1 to form cooperatives for purposes of *833“collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged.” This focus on collectives to replace the processors and middlemen is the key to application of the Act’s policies to modern agricultural conditions.

II

A

The dissent is correct, of course, that “[t]he nature of agriculture has changed profoundly since the early 1920’s when the Capper-Volstead Act was debated and adopted. The reality of integrated agribusiness admittedly antiquates some of the congressional characterizations of farming.” Post, at 843. Most NBMA members are fully integrated, except for the grow-out stage which they contract out. Rather than groups of single-function farmers forming a collective jointly to handle, process, and market their agricultural products, these multifunction integrated units stand astride several levels of agricultural production which Congress in 1922 envisioned would be collectivized. Performing these functions for them*834selves, the allegations of the complaint suggest, they now seek protection of the exemption not to permit collectivized processing but simply as a shield for price fixing. The issue is whether a fully integrated producer of agricultural products performing its own processing or manufacturing and which hence does not associate for purposes of common handling, processing, and marketing is nevertheless “engaged in the production of agricultural products as [a] farme[r]” for purposes of § l’s exemption for such cooperatives if also engaged in traditional farming activity. The dissent frankly recognizes that integrated poultry producers do not neatly fit the limitation Congress signified by the phrase “as farmers,” but reads that limitation out of the Act in order to give effect to what it perceives as Congress’ desire to aid the agricultural industry generally because of the uncertainty of profits in that industry caused by the combination of weather, fluctuations in demand, and perishability of the product. Elision of the limitation Congress placed on the exemption is sacrificed to this end, and the exemption extended to encompass all persons engaged in the production of agriculture. But that drastic restructuring of the statute is not only inconsistent with Congress’ specific intent regarding the meaning of the limitation, but is unnecessary to give continuing effect to its broader purposes. Congress clearly intended, as the discussion in Part I, supra, demonstrates, to withhold exempting processors engaged in the production of agriculture notwithstanding that they bore risks common to agriculture generally, and that they may be “price takers” with respect to the product they sell to large chains of- grocery stores. The dissent fails to explain how extending the exemption in the fashion it suggests can be reconciled with the fundamental purpose of this populist legislation to authorize farmers’ cooperatives for collective handling, processing, and marketing purposes.

The dissent’s construction, it seems to me, would permit the behemoths of agribusiness to form an exempt association *835to engage in price fixing, and territorial and market division, so long as these concerns are engaged in the production of agriculture. It is hard to believe that in enacting a provision to authorize horizontal combinations for purposes of collective processing, handling, and marketing so as to eliminate middlemen, Congress authorized firms which integrated further downstream beyond the level at which cooperatives could be utilized for these purposes to combine horizontally as a cartel with license to carve up the national agricultural market. Such a construction would turn on its head Congress’ manifest purpose to protect the small, individual economic units engaged in farming from exploitation and extinction at the hands of “these large aggregations of men who control the avenues and agencies through and by which farm products reach the consuming market,” 62 Cong. Rec. 2058 (1922) (remarks of Sen. Capper), by exempting instead, and thereby fomenting “these great trusts, these great corporations, these large moneyed institutions” at which the Sherman Act took aim. 21 Cong. Rec. 2562 (1890) (remarks of Sen. Teller). There is nothing in the legislative history, and much to the contrary, to indicate that Congress enacted § 1 to remake agriculture in the image of the great cartels.

B

Definition of the term “farmer” cannot be rendered without reference to Congress’ purpose in enacting the Capper-Yolstead Act. “When technological change has rendered its literal terms ambiguous, the . . . Act must be construed in light of [its] basic purpose.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). I seriously question the validity of any definition of “farmer” in § 1 which does not limit that term to exempt only persons engaged in agricultural production who are in a position to use cooperative associations for collective handling and processing — the very activities for which the exemption was created. At some point along the path of downstream integration, the function of the *836exemption for its intended purpose is lost, and I seriously doubt that a person engaged in agricultural production beyond that point can be considered to be a farmer, even if he also performs some functions indistinguishable from those performed by persons who are “farmers” under the Act. The statute itself may provide the functional definition of farmer as persons engaged in agriculture who are insufficiently integrated to perform their own processing and who therefore can benefit from the exemption for cooperative handling, processing, and marketing. Thus, in my view, the nature of the association’s activities, the degree of integration of its members, and the functions historically performed by farmers in the industry are relevant considerations in deciding whether an association is exempt. The record before us does not provide evidence relevant to these considerations, and there is therefore no basis for appraising NBMA’s entitlement to the exemption while it includes members whose operations are fully integrated whether or not they contract rather than perform the grow-out phase.

Ill

If, because of changes in agriculture not envisioned by it in 1922, Congress’ purpose no longer can be achieved, there would be no warrant for judicially extending the exemption, even if otherwise it would fall into desuetude. In construing a specific, narrow exemption to a statute articulating a comprehensive national policy, we must, of course, give full effect to the specific purpose for which the exemption was established. But when that purpose has been frustrated by changed circumstances, the courts should not undertake to rebalance the conflicting interests in order to give it continuing effect. Cf. Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394, 414 (1974); Fortnightly Corp. v. United Artists, 392 U. S. 390, 401-402 (1968). Specific exemptions are the product of rough political accommodations responsive to the time and current conditions. If the passage of time *837has “antiquated” the premise upon which that compromise was struck, the exemption should not be judicially reincarnated in derogation of the enduring national policy embodied in the Sherman Act.

The dissent’s reconstruction of the exemption is doubly flawed, for it would frustrate the Act’s purpose to protect that segment of agricultural enterprise as to which Congress’ purpose retains vitality. The American Farm Bureau Federation, which has filed a brief amicus curias in this case, “is a voluntary general farm organization, representing more than 2.5 million member families in every State (except Alaska) and Puerto Rico.” Brief as Amicus Curiae 2. Speaking for the contract growers — those who actually own the land and husband the chicks from the time they are hatched until just before their slaughter- — the Federation argues that extending the exemption to integrators would stand the Act on its head; the integrators who process the fully grown broilers could thereby combine to dictate the terms upon which they will deal with the contract growers to the latter’s disadvantage.

Moreover, there is persuasive evidence that Congress’ concern for protecting contract growers vis-a-vis processors and handlers has not abated. In 1968, Congress enacted the Agricultural Fair Practices Act of 1967, 82 Stat. 93, 7 U. S. C. § 2301 et seq. (1976 ed,), designed to protect the “bargaining position” of “individual farmers” by prohibiting “handlers” from interfering with the “producers’ ” right “to join together voluntarily in cooperative organizations as authorized by law.” § 2301. In doing so, Congress legislated specifically to protect contract growers from integrated broiler producers. Section 4 (b) of the Act prohibits a “handler” from discriminating against “producers” with respect to any term “of purchase, acquisition or other handling of agricultural products because of his membership in or contract with an association of producers.” 7 U. S. C. §2303 (b) (1976 ed.) (emphasis added). The definition of the term “producer” is identical to that in *838§ 1 of Capper-Volstead, see 7 U. S. C. § 2302 (b) (1976 ed.), but the legislative history makes clear that for purposes of this Act, Congress considered integrated broiler producers to be “handlers” and acted to prevent them from preying on contract growers. The Senate Report makes this clear: 2

“As introduced, [§4(b)] prohibited discrimination in the terms of 'purchase or acquisition’ of agricultural products. The committee found that this provision would be ineffective with respect to much that it was manifestly intended to prohibit. Thus a broiler contractor might furnish hatching eggs or chicks to a producer under a bailment contract where title remained in the contractor; or a canning company might furnish seeds or tomato plants to a producer under a similar arrangement. No ‘purchase or acquisition’ would be involved. The committee amendment would extend this provision to 'other handling’ of agricultural products, thereby covering the examples just given and greatly broadening the scope of this provision.” S. Rep. No. 474, 90th Cong., 1st Sess., 5-6 (1967). (Emphasis added.)

*839The anomaly of allowing the exemption to those who function more as processors uniquely to disadvantage the contract grower “producers” who today continue to fall within the conception of “farmers” Congress envisioned in 1922, points up the danger of judicially extending the exemption to conditions unforeseen by Congress in 1922.3 The exemption provides a powerful economic weapon for the benefit of one economic interest group against another. However desirable the integrated broiler production system may be, and however needful of the exemption,4 judges should not readjust the conflicting interests of growers and integrators; it is for Congress to address the problem of readjusting the power balance between *840them. Teleprompter Corp., 415 U. S., at 414; Fortnightly Corp., 392 U. S., at 401-402.

See, e. g., 59 Cong. Rec. 7855-7856 (1920) (remarks of Rep. Evans: “[T]he liberty sought in this bill for the man who tills the soil”); id., at *8338017 (remarks of Rep. Volstead); id., at 8022 (remarles of Rep. Sumners); id., at 8025 (remarks of Rop. Hersman); id., at 8026 (remarks of Rep. Towner: "[T]his privilege is not to dealers or handlers or speculators for profit; it is limited to the producers themselves”); id., at 8033 (remarks of Rep. Fields); 61 Cong. Rec. 1034 (1921) (remarks of Rep. Walsh); id., at 1037 (remarks of Rep. Blanton); id., at 1040 (remarks of Rep. Towner: “The fanner is an individual unit. He must manage his own farm. He must have his own home”); id., at 1044 (remarks of Rep. Hersey); 62 Cong. Rec. 2048, 2050 (1922) (remarks of Sen. Kellogg, noting the “individualistic nature of the farmer’s occupation” and describing a farmer as “a small holder of land”); id., at 2051 (remarks of Sen. Kellogg, observing that the legislation was designed to encourage the farmer “in his ownership, in the occupation of his farm, and in the cultivation of his own land”); id., at 2052 (remarks of Sens. Cummins, Kellogg, and Townsend); id., at 2156 (remarks of Sen. Walsh, observing that the legislation protects only “an organization of the producers themselves of the product of the farm”); id., at 2058-2059 (remarks of Sen. Capper).

Secretary Freeman, in recommending passage of the Agricultural Fair Practices Act, on behalf of the United States Department of Agriculture, said:

“Cooperative action in agricultural production and marketing is increasing. It is growing in response to the need, (1) to achieve more orderliness and efficiency in production and marketing, and (2) to protect and improve bargaining relationships between producers and marketing firms in the face of major changes taking place in the marketing system.
“These changes include the growing integration of production and marketing of agricultural products, the increased control of these functions by large, diversified corporations, and the expanded use of contracting by such corporations to meet their needs. Developments such as these weaken the marketing and bargaining position of individué, producers.” Hearings on S. 109 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 90th Cong., 1st Sess., 3-4 (1967). (Emphasis added.)

The dissenting opinion finds helpful in refuting the construction of the exemption suggested in this opinion two brief excerpts from the legislative history, quoted post, at 848 n. 14. These statements merely indicate that a processor like “Mr. Armour” who operates a farm would be entitled, free from antitrust liability, to cooperate with other producers in the common handling, processing, and marketing of the products they grow. Nothing in these statements suggests that the fact of farm ownership, however, would confer upon “Mr. Armour” the privilege to conspire with “Mr. Swift” to fix prices in their processing businesses. The dissent’s assertion, moreover, that the third proviso of 7 U. S. C. § 291 (1976 ed.) allows a food processor by becoming a producer as well to acquire antitrust exemption for whatever he produces and up to 50% of the product of others is surely erroneous. Both the plain language of the proviso and the statement of Senator Walsh quoted indicate that the privilege to process up to 50% of nonmember producers’ products while retaining the exemption belongs to the exempt association, not its members. Indeed, the full colloquy between Senators Kellogg and Walsh indicates that the intent was to exclude processors from the exemption with respect to their processing. “The object being that a few farmers should not organize a corporation simply as a selling agency and not personally really be cooperative members.” 62 Cong. Rec. 2268 (1922) (remarks of Sen. Kellogg).

The statement of Senator Kellogg quoted, moreover, refers to aji amendment which was not passed and which is simply irrelevant.

See Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978).