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Former US Vice President Joe Biden is the latest 2020 presidential candidate to weigh in on federal gambling policy.
After addressing a group of Las Vegas union workers last week, Biden’s campaign told CDC Gaming Reports that he “doesn’t support adding unnecessary restrictions to the gaming industry like the Trump Administration has done.”
Subsequent remarks touched on both traditional and online gambling, including the ongoing legal battle over the latter. The Democratic frontrunner rebuked the administration for its handling of the Wire Act.
Biden’s comments came just a few weeks after fellow candidate Andrew Yang proclaimed his support for legal online gambling.
In late 2018, the US Department of Justice under then-Attorney General Jeff Sessions began to actively reverse course on the Wire Act.
Under an opinion released in early 2019, the DOJ’s Office of Legal Counsel moved to broadly apply the 1961 federal law to all forms of interstate gambling. The previous opinion, which shaped enforcement in the modern era, expressly limited its scope to sports betting.
The sudden reversal could put all state-regulated online gambling in jeopardy, including poker, casino games, and lottery.
Biden has now addressed that opinion more than once in Las Vegas, including at a previous event in July:
“I would reverse the White House opinion that was then reversed and overruled by the court. The court is correct. That should be the prevailing position.”
Last week, he reiterated to CDC that he “believes states and federal authorities should cooperate to ensure gambling is safe, fair, and corruption-free.” And despite the DOJ’s reversal, that certainly seems to be the will of the people.
Three US states already regulate full-scale online gambling — New Jersey, Delaware, Pennsylvania — and that list is about to grow. West Virginia passed an expanded law earlier this year, while a comprehensive bill in Michigan is headed back to the governor’s desk for the second time.
Six more states offer online lottery sales too, with North Carolina looking to become lucky number seven.
The expansion of legal, regulated online gambling still faces a number of challenges at the federal level. And it starts with the DOJ.
The 2018 opinion might not have originated under his tenure, but current AG William Barr has put himself in lockstep with the administration on matters of policy. And despite — or perhaps because of — his history of casino ownership, Donald Trump isn’t necessarily a pro-gambling President.
The Office of the Attorney General is, however, one of the first things that would change hands if Biden took office.
The partisan Barr is among those giving breath to accusations against the Biden family, alleging impropriety in foreign affairs during his time as an elected official. Laws and opinions aside, the political climate for expanded gambling would likely be more favorable under a new President than it is today.
The lobbying landscape changes a great deal under a Democratic leader too.
A party flip would squelch the power of casino tycoon Sheldon Adelson, the Republican donor who funds online gambling opposition with bottomless pockets. While Adelson’s purported involvement in the OLC reversal remains speculative, it’s plausible enough that it drew an inquiry during the confirmation hearing of Sessions’ temporary successor.
All that said, the nation’s Chief Executive does not have autonomous lawmaking power. The best remedy for what ails US online gambling might be a full repeal of the Wire Act, and that would require an act of Congress.
It’s been a while since we’ve written about the Wire Act lawsuit at length.
As it stands today, the litigants are preparing their appellate briefs following a ruling for the plaintiffs from Judge Paul Barbadoro in June. The honorable Barbadoro predicted this case might eventually end up before the Supreme Court as he rendered the decision to set aside the 2018 opinion.
The DOJ promptly appealed the ruling, so the case now moves to the First Circuit Court of Appeals. Although this court has never directly opined on the scope of the Wire Act, it previously relied on a narrow interpretation in a key decision in Lyons.
Both parties have submitted their preliminary briefs, and the baton is currently in the defendants’ hands for a reply. The court will subsequently set a date for oral arguments before a panel of three judges, which could happen as soon as early January. The DOJ has agreed to take no enforcement action under the new opinion until at least 60 days after final judgment.
Meanwhile, some members of Congress are once again floating the idea of federal intervention in state-regulated gambling.