Pro-States' Rights Groups Fire Back After Sessions Suggests He May Rollback 2011 OLC Opinion

Groups Implore Trump Administration To “Reject Cronyist Calls” For Federal Online Gambling Ban

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Nine groups have sent a letter to Vice President-elect Mike Pence and Attorney General nominee Jeff Sessions, urging the incoming administration to “honor [its] promise by refusing special interest demands for a federal prohibition on Internet gambling.”

The “promise” being referred to is president-elect Donald Trump‘s “drain the swamp” rallying cry.

Below is an excerpt from the letter:

“Although prior administrations have chosen to interpret the Wire Act as creating a de facto prohibition on Internet gambling, this was clearly not the intent of Congress when it was enacted in 1961. Its purpose was “to assist the various States in enforcement of their laws pertaining to gambling and bookmaking,” [emphasis added] and this is according to testimony from the law’s very own architect, Attorney General Robert F. Kennedy.

More recently, in 2011, the Office of Legal Counsel (OLC), the top legal advisor for the executive branch, issued an opinion on the Wire Act after several years of deliberation, finding that the law did not prohibit states from legalizing online gambling so long as the gambling was not sports-related.

Though Sen. Sessions indicated in his January 10th confirmation hearing that he was “shocked” by the opinion, the OLC memo was not a “reinterpretation,” of the Wire Act’s intent: it merely restored the law to its original meaning.”

Read the full letter here.

Sessions’ pot-stirring remarks during confirmation hearing

The letter comes on the heels of Sessions confirmation hearing in front of the Senate Judiciary Committee.

During the hearing, Sessions was questioned by Senator Lindsey Graham (R-SC) about the 2011 Department of Justice Office of Legal Counsel opinion that limited the scope of the 1961 Wire Act to sports betting.

By extension, the legalization of intrastate online gambling was given the green light.

Graham is one of the sponsors of the Restoration of America’s Wire Act (RAWA) in the Senate, a bill that seeks to rollback the 2011 OLC opinion to an earlier interpretation from 2002, effectively instituting a federal online gambling ban.

“I was shocked at the memorandum – the enforcement memorandum – the Department of Justice issued with regard to the Wire Act, and I criticized it,” Sessions said in reply to Graham’s question.

Graham’s follow-up question to Sessions was if he would revisit the OLC opinion, to which Sessions responded, “I would revisit it, or make a decision about it based on careful study,” adding, “I haven’t gone that far to give you an opinion today.”

But in-between those two statements, Sessions intimated that his decision wouldn’t necessarily be the one Graham is looking for.

“Apparently there is some justification or argument that can be made to support the Department of Justice’s position, but I did oppose it when it happened, and it seemed to me to be unusual,” Sessions said.

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Signatories of the letter

  • Michelle Minton, Fellow, Competitive Enterprise Institute
  • Andrew Langer, President, Institute for Liberty
  • David Williams, President, Taxpayers Protection Alliance
  • Norman Singleton, Vice President of Policy, Campaign for Liberty
  • Andrew F. Quinlan, President , Center for Freedom & Prosperity
  • Katie McAuliffe, Executive Director, Digital Liberty
  • Tom Giovanetti, President, Institute for Policy Innovation (IPI)
  • Brian Garst, Director of Policy and Communications, Center for Freedom and Prosperity
  • Paul Gessing, President, Rio Grande Foundation

Poker Players Alliance weighs in

On Tuesday, the Poker Players Alliance issued its own response to the potential implications of Sessions’ testimony.

In the response, PPA Executive Director John Pappas cited the Unlawful Internet Gambling Enforcement Act of 2006, writing, “In 2006, a Republican Congress and a Republican President passed and signed into law a bill that allowed states to regulate online gaming.”

What Pappas is referencing is the often forgotten part of UIGEA: the law exempts intrastate online gambling legalized by the state that doesn’t violate the following federal laws:

  • Interstate Horseracing Act of 1978
  • Professional and Amateur Sports Protection Act (PASPA)
  • Gambling Devices Transportation Act
  • Indian Gaming Regulatory Act

UIGEA states:

INTRASTATE TRANSACTIONS.—The term ‘unlawful Internet gambling’ does not include placing, receiving, or otherwise transmitting a bet or wager where—

(i) the bet or wager is initiated and received or otherwise made exclusively within a single State;

(ii) the bet or wager and the method by which the bet or wager is initiated and received or otherwise made is expressly authorized by and placed in accordance with the laws of such State, and the State law or regulations include— ”(I) age and location verification requirements reasonably designed to block access to minors and persons located out of such State; and ”(II) appropriate data security standards to prevent unauthorized access by any person whose age and current location has not been verified in accordance with such State’s law or regulations; and

Pappas went on to say the 2011 OLC opinion reaffirmed what UIGEA says. Specifically, that states are able to legalize intrastate online poker and casino games.

“This language was reaffirmed by the Department of Justice (DOJ) in 2011 and empowered individual states to pursue policies that best served their citizens,” The PPA letter states.

Pappas also called a possible reversal of the OLC opinion a “radical departure from the precedent given to the independent and legally based opinions generated by DOJ’s Office of Legal Counsel (OLC).”

The PPA letter ends with:

“I agree with Senator Graham, ‘when the state is doing its job, the federal government should let the states do their job.’ States around the country are doing their jobs by effectively regulating internet gaming. The next Attorney General should not usurp the rights of states. A de facto federal prohibition of internet gaming will undermine the ability of states to protect consumers and will lead to an unaccountable and completely unregulated black market.”

- 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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