Supporters of Sheldon Adelson’s online gambling ban would have you believe the 2011 opinion written by then US Assistant Attorney General Virginia Seitz for the Office of Legal Counsel fundamentally changed the 1961 Wire Act.
“In yet another example of executive branch overreach, the DOJ crossed the line by making what amounts to a massive policy change without debate or input from the people or their representatives.
We must restore the original interpretation of the Wire Act. If there is justification and support for a change, the Constitution designates Congress as the body to debate that change and set that policy.”
The truth is, the opinion didn’t change a single word of the original law, and was sought to provide clarity to what turned out to be an ambiguous 2002 DOJ opinion on the Wire Act.
The 2011 opinion did just that, clarifying the current interpretation of a law that was written in 1961 as it pertains to new, emerging technology, and narrowing its focus to its original sports betting language.
Chaffetz wants to turn back the clock for sure, but the interpretation of the Wire Act Chaffetz wishes to reinstate is not the original 1961 Wire Act; he only wants to go back to 2002.
Like the 2011 OLC opinion Chaffetz so loathes, the interpretation Chaffetz prefers was also offered without the approval of Congress, via a 2002 DOJ opinion (the same type of opinion he is now calling executive overreach) as law enforcement attempted to deal with the onset of illegal offshore online gambling.
What Chaffetz (and by extension Adelson) wants is the 2002-2011 interpretation of the Wire Act, not the 1961 Wire Act.
Problem is, while the DOJ enforced their 2002 opinion as law, the courts saw it otherwise, and continued to limit the Wire Act (even in cases of online gambling) to sports betting.
The 2002 DOJ interpretation was overruled in federal court several times[i], and legal analysts have questioned the opinion’s validity since it was offered, particularly the expansion of the Wire Act not just to the Internet, but beyond sports betting.
This eventually led to the chain of events that culminated with the 2011 OLC opinion.
The 2011 opinion offered by the OLC was not made on a whim. It was at the request of the New York State Lottery and the Illinois Governor’s office, as both states considered online lottery sales and sought clarity on the Wire Act’s application to intrastate online lottery sales.
For most people this request isn’t a problem, since interpreting potentially ambiguous statutory law is what the OLC is tasked with.
And had Seitz entered the opinion of the Wire Act banning all forms of online gambling I doubt Chaffetz and Adelson would have made a peep about the overreach of the executive branch in the bowels of the DOJ.
Attorney General Nominee Loretta Lynch attempted to explain the duties of the OLC to Senator Lindsey Graham when she answered his submitted questions following her Senate Judiciary Committee hearing. Lynch said this of the OLC’s role in interpreting law:
“[…] it is my understanding that the Office strives to provide an objective assessment of the law using traditional tools of statutory interpretation. These tools would not include seeking the views of Congress, the public, law enforcement, or state and local officials on a question of statutory interpretation.”
What the OLC did in 2011 is restore the Wire Act to its original intent, and in the process end what had been a controversial opinion from 2002.
This is why in her academic paper on the Wire Act, Michelle Minton called the title of Chaffetz’s bill, the Restoration of America’s Wire Act, a misnomer, as it is attempting to “REWRITE” the 1961 Wire Act.
RAWA does nothing to aid law enforcement efforts to shut down illegal offshore online gambling. Nor does it call for additional funding or provide new tools to counteract these elusive operators.
RAWA would put an end to the regulated online gambling sites run by Sheldon Adelson’s competitors in the casino industry: Caesars, MGM, Tropicana, Golden Nugget, and Boyd Gaming, among others.
By prohibiting legal, regulated, intrastate online gambling RAWA goes too far, as there are other laws available that can be used to prosecute illegal online gambling sites.
RAWA is an attack on legal, regulated, online gaming in the U.S., not an attempt to protect America from the online gambling bogeyman “in every pocket” RAWA supporters claim to be fighting against.
[i] In re Mastercard International Inc., 2002, United States Court of Appeals, 5th Circuit; U.S. v. Lyons, 2014, United States Court of Appeals, 1st Circuit