Anti-Online Gambling Proponents Could Attack From Multiple Fronts In 2017

The Threat Of A Federal Online Gambling Ban Has Been Averted For Now, But Rejuvenated Efforts Expected In 2017

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The 114th Congress has come to a close following an altogether uneventful lame duck session.

Of note to US online poker supporters, the 2016 legislative session finished without Congress sneaking a federal online gambling ban into a larger piece of legislation, as some groups had warned could be the case.

In the end, the 2016 RAWA threat turned out to be much ado about nothing — well, almost nothing, as I’ll explain in a moment.

However, it will likely be back in 2017 with a bit more ferocity.

All bark and no bite

In the lead-up to the lame duck session, the Poker Players Alliance, as well as a coterie of conservative and libertarian groups, had cautioned lawmakers and watchdogs to be on guard against an online gambling prohibition like RAWA being rushed through at the eleventh hour.

These concerns appear to have been overstated, as there was nary a whisper from RAWA supporters during the lame duck.

Around the same time, the existence of a letter calling on Congress to reinstate a federal online gambling ban (signed by 10 state attorneys general) sent to Vice President-Elect Mike Pence and the Trump transition team came to light. 2016 marks the third consecutive year such a letter has surfaced.

Many of the arguments for an online gambling prohibition made in the letter were systematically dismantled in a second letter sent by Representative Dina Titus (D-NV). Online Poker Report did its own fact-checking in this column.

But the ban-supporting letter wasn’t the only reason online gambling supporters grew increasingly anxious as the lame duck approached, as several other developments at both the state and federal levels surfaced.

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Facts (don’t) matter

Similar to the letter signed by 10 state attorneys general, recently revealed letters from Pennsylvania and Michigan poker advocates (here and here) are a clear indication that these misleading arguments are pervasive and can often stay hidden behind the scenes where they do untold damage.

In a telephone interview with OPR, Rep. Titus made it clear that the letters shouldn’t be a surprise, as some of the major players in this fight aren’t interested in facts or consistency in their policy positions.

Speaking to OPR, Rep. Titus said:

“Intellectual honesty is not real big in Congress, so even though they say they’re for state’s rights on certain issues when it comes to something like this we’ll see what they do.

I don’t think they’re really interested in some facts about how to make this work. I think they’re just taking kind of an ideological position that they don’t want this to happen. There’s no evidence that young people are doing it, but that’s kind of the argument that they’re making.

Some of the examples that they use where they talk about the problems of online gambling, they don’t point out that’s online gambling that’s illegal, not online gambling that’s legal.

Yet they just leave it hanging out there to make the impression that [these issues are occurring] in places where online gaming is regulated like Nevada. “

Titus’ history of supporting regulation

Her rebuttal of the AG letter wasn’t Rep. Titus’ first foray into this debate.

During a December 2015 RAWA hearing, Rep. Titus invited all of the members of the House Oversight and Government Reform Committee, chaired by RAWA sponsor Jason Chaffetz (R-UT), to come to Nevada and see the geolocation and player verification technology in action for themselves.

To no one’s surprise, none of the committee members have taken her up on the offer at this time.

Rep. Titus sees this as a missed opportunity.

“Nevada is the gold standard internationally for the regulation of all kinds of gambling, and they should come out here and learn from us,” she said. “Since we’ve put this in place, there haven’t been any problems and no news stories about any problems or evidence it’s not working.”

A new front emerges during the lame duck

If there wasn’t already enough going on, during the tail end of the lame duck session, outgoing Representative Mike Fitzpatrick (R-PA) decided to introduce an anti-online gambling House resolution on Dec. 7, 2016, just a few days before his last day as a representative for the state of Pennsylvania.

Fitzpatrick’s resolution, HR 6453, reads:

“The Memorandum Opinion for the Assistant Attorney General, Criminal Division, dated September 20, 2011, and pertaining to the lawfulness of proposals by Illinois and New York to use the Internet and out-of-state transaction processors to sell lottery tickets to in-state adults (including the applicability of the Wire Act (18 U.S.C. 1084) and the Unlawful Internet Gambling Enforcement Act (31 U.S.C. 5361–5367) to such proposal), does not carry the force of law and shall have no force and effect for purposes of interpreting or applying section 5362(a)(10) of title 31, United States Code.”

I’ll leave it up to the reader to guess at why Fitzpatrick would introduce the resolution with essentially no time left in the session. But this attack on the validity of the 2011 OLC opinion is become an increasingly common talking point among online gambling prohibitionists, and it could play a major role in 2017.

Anti-online gambling push in 2017 could come in two ways

A federal online gambling prohibition could take one of two forms in 2017:

  1. A new RAWA or RAWA-like bill could be introduced, or
  2. like the [Fitzpatrick] resolution, detractors could try to discredit the existing DOJ opinion.

With this new focus on the OLC opinion, and an incoming administration with an Attorney General nominee (current Alabama Senator Jeff Sessions) who is no friend of gambling and has a checkered history of balancing his states’ rights positions with his social conservatism, prohibitionists now have multiple arrows in their quiver.

RAWA continues to be the centerpiece

The main front in this fight will likely be the legislative push for the passage of the Restoration of America’s Wire Act (RAWA), a piece of legislation that would institute a federal ban on online gambling.

Rep. Titus indicated to OPR that the RAWA threat is probably overblown. Considering the lack of support RAWA has received during the past three years, the bill seems to be more of a wish than a goal.

Yet, even if it simply collects dust, RAWA’s mere presence works for the anti-online gambling crowd, as it provides state legislators with a convenient excuse to take a wait-and-see approach to online gambling.

As Rep. Titus noted, “The Congress isn’t really interested in doing anything with this [RAWA]; they’ve had a couple of courtesy hearings, but it certainly hasn’t moved forward.”

RAWA could also be distracting from the anti-online gambling crowd’s real plan of attack, as a second, non-legislative front is starting to come into focus.

Attack on the OLC opinion

As noted above, online gambling opponents are now attempting to discredit the 2011 Department of Justice Office of Legal Counsel opinion that opened the door for states to legalize intrastate online gambling.

The push seems to be centered on getting the 2011 OLC opinion tossed out, or for the incoming Attorney General to revisit the opinion and reinterpret the 1961 Wire Act’s scope to include all forms of online gambling and not simply sports betting. This possibility wasn’t lost on Rep. Titus.

“Now, Sessions … it’s going to be interesting,” she said. “He’s like a super states’ rights person, so what’s he going to do? But the flip side of that coin is, how much is Mr. Adelson going to play in this? He’s very close to a number of Republicans, including the president.”

Rep. Titus called a reversal of the 2011 OLC opinion “problematic,” adding, “The Trump administration has got a lot more pressing things to deal with.”

Either way, if online gambling prohibitionists are successful, it’s a safe bet that lawsuits would likely be filed by states with legal online gambling industries (Nevada, Delaware, New Jersey, Illinois, Michigan, Georgia, and Kentucky), as well as states looking to legalize online gambling.

- Steve covers nearly every angle of online poker in his job as a full-time freelance poker writer. His primary focus for OPR is the developing legal and legislative picture for regulated US online poker and gambling.
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