This article originally appeared on The Hill’s Congress Blog on May 13, 2016.
If there’s one sure takeaway from the 2016 presidential campaign season thus far, it’s that the public is not happy with Washington elites. Yet it doesn’t seem like Congress has gotten the message. Instead of focusing on issues that matter to voters, the backroom insertion of anti-gaming language into a recent Senate appropriations bill shows they are still working to benefit mega-donors at the expense of personal freedom.
Several states in recent years have expanded liberties and exercised their rights under the Constitution by legalizing online poker and gambling for residents within their borders. Although the games take place online, access is limited only to those within the particular state’s borders. There is thus no reason for the federal government to be involved.
Some members of Congress, urged on by billionaire Las Vegas casino magnate Sheldon Adelson, feel otherwise. The language that they successfully inserted into a Senate bill, and hope to also add to House legislation, reads in part: “Internet Gambling.–Since 1961, the Wire Act has prohibited nearly all forms of gambling over interstate wires, including the Internet. However, beginning in 2011, certain States began to permit Internet gambling. The Committee notes that the Wire Act did not change in 2011. The Committee also notes that the Supreme Court of the United States has stated that ‘criminal laws are for courts, not for the Government, to construe.’”
The language is troubling for a number of reasons and has huge implications for states that have legalized online gaming, for states that allow the sale of lottery tickets online, for millions of Americans who play fantasy sports, and even for those who cherish the Second Amendment.
It’s true the Wire Act didn’t change in 2011, but its interpretation by the Department of Justice (DOJ) rightly did. For the longest time a pre-internet law limited to “the placing of bets or wagers on any sporting event or contest” by “transmission in interstate or foreign commerce” was interpreted much more broadly to criminalize all manner of gambling.
In 2011 states asked for clarification, and the DOJ finally admitted that just as the law says, intrastate, non-sports gambling is not actually prohibited. They were right. An historical analysis by Michelle Minton of the Competitive Enterprise Institute demonstrated unequivocally that the Wire Act was intended only to prohibit sports gambling over state lines.
Ever since, there has been an effort underwritten by Adelson – a major Republican donor – to prevent states from setting their own gaming rules. This has included attempting to enact the grossly misnamed Restoration of America’s Wire Act (RAWA), which would codify the erroneous prior interpretation of the Wire Act to override state gambling preferences.
In December RAWA advocates found themselves in an unexpected quagmire, as a hearing chaired by the law’s sponsor, Rep. Jason Chaffetz, revealed strong opposition among both his fellow Republicans and Democrats alike. Many took issue with the bill’s blatant attack on federalist principles and its origins as a crony handout. Rep. Mick Mulvaney even noted that the bill could open the door to further regulation of the internet and encourage those who want the federal government to ban ammunition sales.
New technology is challenging Adelson’s business model, as often happens in a free economy. He should take whatever steps he thinks are appropriate to adapt his business to the times, but that shouldn’t include using the federal government to override state rules and limit the choices of consumers.
Yet rather than call it quits, RAWA supporters are clearly hoping that a new approach will pay dividends. The Senate language is a clear marker that they intend to continue pushing the false narrative that the Wire Act is being misconstrued by prosecutors, and that states should be prevented from legalizing games enjoyed by millions of Americans.
House lawmakers should respect the rights of states to set their own rules and refuse to follow the Senate’s lead. House Republicans, particularly Rep. John Culberson, the Chairman of the House Appropriations Commerce, Justice, Science Subcommittee, should reject this cronyism and defend core constitutional principles.
