Sen. Heller's Wire Act Worries Don't Add Up

Senator Dean Heller’s Stated Reason For Opposing Loretta Lynch Doesn’t Make A Whole Lot Of Sense

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Nevada Senator Dean Heller may well have good reasons for shifting toward the “no” column on Attorney General Nominee Loretta Lynch.

But the reasons he’s offering in public certainly aren’t among them.

As reported last week in Politico:

Republican Sen. Dean Heller said in an interview that he is “leaning no” on the confirmation vote expected next week, a view that is based on Lynch’s answers to his concerns about how to regulate gambling. The Nevada senator said Lynch’s responses to a letter he sent following up on the issue left him “not very comfortable.”

“She said she has very little knowledge of what occurred in the Wire Act,” a 1961 law that banned certain types of interstate gambling, Heller said. “And yet at the same time, she prosecuted illegal gambling, offshore gambling. You can’t be prosecuting illegal gambling and say you have very little knowledge of the Wire Act itself.”

Heller’s explanation doesn’t make much sense, and here’s why.

Lynch certainly has “knowledge” of the Wire Act

The idea that the United States Attorney for the Eastern District of New York has “very little knowledge” of the Wire Act is laughable on face.

The Wire Act is less than 400 words long and has been one of the federal government’s primary weapons against illegal sports betting for over half a decade.

And as the written follow-up to her Senate testimony makes clear, Lynch’s office pursued cases that involved Wire Act violations.

At no point in her Senate testimony or written follow-up did Lynch profess to or imply any lack of knowledge or understanding regarding the Wire Act.

I asked Sen. Heller’s office for a copy of Lynch’s responses to Heller’s letter and received no reply.

But I sincerely doubt that Lynch said anything to indicate that she “has very little knowledge” of the Wire Act.

Lynch certainly understands OLC’s Wire Act opinion

Perhaps Senator Heller is conflating the Wire Act itself with a 2011 opinion on the Wire Act issued by the Department of Justice’s Office of Legal Council (OLC) .

A quick bit of background: In a 2002 response to an inquiry from Nevada, the DoJ asserted that the Wire Act applied to not just sports betting, but all forms of online gambling.

The 2011 DoJ opinion restored the original intent of the Wire Act and resolved the tension between the UIGEA – which specifically excluded regulated interstate gambling from the definition of “unlawful Internet gambling” – and the 2002 DoJ opinion on the Wire Act, which rendered such activity illegal.

Again, the idea that Lynch “very little knowledge” of the OLC opinion is patently ridiculous.

The opinion is brief (13 pages), was issued over three years ago, has been widely discussed and has a single upshot: outside of sports betting, intrastate online gambling authorized by the state does not fall under the scope of the Wire Act.

And again, Lynch’s written follow-ups leave little doubt that she is well aware of the details and impact of the OLC opinion.

So what is Heller’s real complaint?

Only he can say for sure. But two reasonable explanations come to mind.

He’s leveraging his vote

Lynch’s nomination vote is thought to be close enough that Vice President Joe Biden may have to step in to break a tie.

That gives Heller’s vote quite a bit of potential value. And raising vague concerns about the Wire Act – as opposed to more politically charged issues like immigration – is one way for Heller to publicly justify his concern without going out on any sort of political limb.

It’s also a relatively easy concern to walk back from. Heller only needs to become “satisfied” that Lynch understands the Wire Act. Which she clearly does. Simple enough.

He’s appealing to Adelson

Lynch made it clear in her follow-up answers that she’s unlikely to reverse the OLC’s 2011 Wire Act opinion.

That puts her at odds with Sheldon Adelson’s political push to ban regulated online gambling at the federal level by “restoring” the Wire Act.

Adding his voice to those of Senator Graham and Senator Feinstein, who both mentioned the OLC opinion in their follow-up questions to Lynch, provides a low-risk route for Heller to draw more attention to, and bolster the perception of broader support for, Adelson’s pet initiative.

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- Chris is the publisher of Grove also serves as a consultant to various stakeholders in the regulated market for online gambling in the United States.
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