Former New Jersey state Sen. Raymond Lesniak is ready to answer the call of current Senate President Steve Sweeney and the New Jersey Senate Democrats to seek a declaratory judgment that Monday’s opinion issued by the Justice Department’s Office of Legal Counsel is contrary to the clear intent of the Wire Act.
“It looks like I will have to go to court again to straighten out the Justice Department’s overreaching on states’ rights, as I did with sports betting,” Lesniak told Online Poker Report. “This opinion is outrageous. It puts state lotteries at risk and state revenues. If Congress won’t fix it, I will through the judicial process.”
New Jersey was the second state to legalize online gambling following the Justice Department’s 2011 Office of Legal Counsel opinion limiting the scope of the Wire Act to sports betting. Few folks were more central to that endeavor than Lesniak, who is springing back into action to protect the thriving NJ online gambling industry he helped create.
“The new Justice Department opinion threatens the significant boost enjoyed by New Jersey casinos, and the jobs and state revenues from online gaming and it could also have a negative impact on sports betting at our casinos and racetracks,” Sweeney said in a statement. “We don’t want to lose the hard-fought gains that are helping to revive Atlantic City and the state’s gaming industry.”
Lesniak, who spent 40 years serving in the New Jersey state legislature, wonders why the Justice Department would issue this reversal seven years after telling states and lotteries that it was fair weather, to keep sailing on course.
“The only thought anyone has is Sheldon Adelson,” Lesniak said. “But as a lawyer, as someone who has battled with the Justice Department but ultimately believes they are a nonpartisan, nonpolitical part of government, I don’t want to believe that Sheldon Adelson has imposed his influence on this opinion.”
According to the Washington Post, Adelson and his wife donated $113 million in support of Republican candidates during the 2016 election cycle, including $20 million to the campaign of President Trump.
If this opinion was motivated by Adelson’s money and influence, Lesniak has a message for the Las Vegas Sands’ CEO:
“Brick-and-mortar gaming is dying. The younger generation has very little interest in casino gambling. Everybody is online, and that’s where the action is. I just don’t understand why Sheldon Adelson thinks this is important to protect his business interests.”
Lesniak is concerned about the “chilling effect” the new opinion could have on the expansion of regulated online gambling in the United States.
The former senator has long spoken about his vision of New Jersey as a global center for online gambling, partnering with other states and international jurisdictions. During his time in office, NJ helped create the multistate online poker alliance that facilitates liquidity sharing with Nevada and Delaware.
Among the many other possible ramifications, this new interpretation puts that compact in jeopardy.
“It throws a monkey wrench into everything,” Lesniak said. “This throws a wet blanket on any of this expansion. It makes everyone stop and think and halt and wait. The devil is in the details. You don’t know how the Justice Department is going to enforce it.”
A possible way to address the issues and concerns stemming from this opinion would be for Congress to take on Wire Act reform. It could, if it chose, clarify the purpose of the 1961 federal law in the modern context of high-speed internet and smartphones.
Lesniak isn’t expecting a Congressional fix, though. He tried that route 11 years ago to open up NJ sports betting, and it didn’t work.
“It’s going to have to be settled in the courts,” he said. “Getting Congress to act would be the best way to deal with this, but getting Congress to act on anything these days is very difficult.”
One group that might motivate Congress to act is the National Conference of State Legislatures — a bipartisan, non-governmental organization established in 1975 to serve members and staff of state legislatures.
“It would be nice to see a coalition of states combining to raise up in arms legally and legislatively,” Lesniak said. “There are a lot of states with substantial reliance on internet lottery sales that this jeopardizes. Just maybe they could get Congress to act.”
Lesniak may seem an unlikely person to be involved in a legal battle to take on this OLC opinion. He’s retired from office, after all. And while he is an attorney, he isn’t currently practicing. He said he would return to Weiner Law Group, where he previously practiced, to file the legal challenge.
There are, however, two reasons he shouldn’t be underestimated:
Lesniak was one of the key figures in the years-long fight to grant states the right to offer sports betting. Even though his name wasn’t on the US Supreme Court case that overturned PASPA, he had more to do with that 2018 decision than the name that was – Gov. Phil Murphy.
Lesniak filed the very first challenge in New Jersey, and he introduced the legislation that eventually led to the SCOTUS hearing years later. In recognition of his effort, Monmouth Park invited Lesniak to place one of the first legal sports wagers in New Jersey (pictured), behind only Murphy at the window.
With so much still unclear, the fiery senator did offer OPR one strong assurance in closing:
“I will find a way to get involved, to challenge this interpretation and to knock it down. We have to stand up strong and be a leader in fighting this. How that manifests itself, I can’t say right now, but New Jersey will be at the forefront of it for sure.”
Lesniak’s book, Beating the Odds: The Epic Battle that Brought Legal Sports Betting Across America, will be released on Jan. 27 in the lead-up to the Super Bowl.