As of this writing, we are only a few short weeks from signing the Memorandum of Understanding (MOU) between John Deere and the American Farm Bureau Federation (AFBF). It is early in the legislative cycle, and the effect remains to be seen. However, for anyone engaged in this issue over the last six years, the MOU is a newly introduced factor that will significantly change the existing situation. More simply put, it’s a game changer.
The MOU was inked at the AFBF’s annual meeting in Puerto Rico on January 8, 2023 and became effective that same date. Building on the voluntary Industry Commitment before it, the MOU laid out the agreement on what tools, diagnostics, software and documentation John Deere would make available to farmers for repair. The purpose of the MOU is clear, to reach a private sector commitment to achieve the widespread availability and access to items necessary for self-repair rather than legislative or regulatory measures. By that, they mean avoiding Right to Repair legislation, which is a benefit to all parties considering the unintended consequences that legislation would have.
The timing of the MOU is important. Several Right to Repair bills have already been pre-filed or introduced early in various state legislative sessions. This year marks the 7th in a row that such legislation has been introduced. Over that time, hundreds of bills across the country have been beaten back and defeated. In recent years, there has been a slough of Right to Repair bills specifically targeting farm and construction machinery. The trend is that more and more states have been introducing Right to Repair legislation, and the bills have been taken more seriously and getting further in the legislative process. This year, it is very well possible that we will see some form of Right to Repair legislation introduced in every state.
Now, with the MOU in place, it seems the tide has turned against ill-advised and poorly formulated legislation. The response to the MOU has been overwhelmingly positive. The media has treated it as though John Deere finally pulled back the curtain and allowed farmers to fix their tractors for the first time in history. Those of us who know better do a quick eyeroll and allow the narrative to continue even though it lacks all accuracy. That’s because perception is the reality these days, especially in politics, and as long as those stories remove the threat of dangerous legislation, we’ll go along. And that seems to be what they are doing.
In every political issue, there are sign holders and stakeholders. Those who are stakeholders have a real interest in the outcome of an issue and want to sincerely work towards a policy that will benefit stakeholders. Sign holders are basically protesters and instigators who either have no interest at stake, or merely have ulterior motives for their involvement in the issue. There are certainly both groups in the Right to Repair debate. The American Farm Bureau Federation and affiliate state Farm Bureau chapters are firmly in the camp of stakeholders. The MOU is clear evidence of that.
With stakeholders agreeing to a private sector commitment that includes not supporting legislation, why would any Right to Repair bill exist? That is the burning question. There are sign holders watching their political issue drift away and will try clinging to it for relevance, but that doesn’t seem like enough reason for legislation to go anywhere. There are also legislators who believe and will argue they are simply codifying what the MOU does, and who would argue with that? The answer is quite simple and also a rationale for a private agreement that is amenable and includes ongoing dialogue to ensure accountability. If a legislative mandate on this issue were passed 20-even 10 years ago, it would be outdated and not account for all the technological changes that have occurred since then. It is the nature of government intervention to always be behind innovation. When the government does intervene, it often creates skewed incentives that deter investment and bring about unintended consequences. That would undoubtedly be the case if Right to Repair legislation relating to farm equipment were to pass, as anyone with even a cursory knowledge of the industry understands.
We’ll have our answer in a couple of months whether the MOU will finally put Right to Repair legislation to rest. The automotive industry reached a similar MOU nearly a decade ago and has thus far received a carve out from almost every piece of Right to Repair legislation. The same should occur for our industry. A reasonable person would be led to believe so, though only time will tell whether legislators agree that comprehensive private resolution to industry issues is preferable to misguided legislation.
Article Written by Eric Wareham
ERIC WAREHAM is senior vice president of government affairs for NAEDA. He has extensive legal and policy experience in both a trade association and the private sector. Prior to joining the association, he was general counsel for an Oregon-based heavy civil construction company. He also served as the director of government relations and general counsel for an association in the wood products industry, has managed state and national political campaigns and held numerous positions in a state legislature. Wareham is a graduate of the Willamette University College of Law and Augusta University.