The Politics Of Prohibition

#127 © Copyright 2006, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I Nelson Rose, www.GamblingAndTheLaw.com

Everyone wants to know: What will happen next? With the Democrats in control of Congress, will the new Internet gambling law be repealed? Will there be a special carve-out for poker? Is the door now partway open for land-based casinos to use the Internet?
It is important to remember that almost nobody in Congress has much interest in Internet gambling. When Bill Frist (R.-TN), rammed the Unlawful Internet Gambling Enforcement Act through in the final minutes before Congress broke for its pre-election recess, the only members of either chamber that cared about online gaming were the “anti’s:” Rep. Jim Leach (R.-IA), Rep. Bob Goodlatte (R.VA) and Sen. Jon Kyl (R.-AZ). A few others occasionally spoke up: Rep. Barney Frank (D.-MA), who believes government should not interfere with adults’ rights to gambling; Rep. Frank Wolf (R.-VA), who believes the exact opposite, that all gambling should be outlawed; Rep. John Conyers, Jr. (D-MI) & Sen. John Ensign (R.-NV) who favor a detailed study.
Notice a name not on the list – Bill Frist. Frist doesn’t give a hoot about Internet gambling.
But he does want to be elected President in 2008. He wants it so bad, that he gave up his safe Senate seat to spend the next two years doing nothing but campaigning for the Republican nomination.
To get there, he needs a power base and powerful allies. Frist decided in the middle of 2006 that prohibiting Internet gambling would be a step toward getting both.
Frist’s base is the religious far right. For example, after courts repeatedly ruled that Terri Schiavo was in an irreversible coma and would have wanted her life support discontinued, Frist called the Senate into an extraordinary, Easter weekend session. If Frist was willing to have the federal government interfere in the most fundamental and private questions facing a single family, he certainly would not hesitate to tell everyone else what they can and cannot do in their bedrooms or on the Internet.
Frist was apparently turned on to Internet gambling by Jim Leach. Leach, a 30-year-veteran of Congress, was the powerful chair of the House Foreign Relations Committee. Just as important, Leach was from Iowa, where the first presidential caucuses will be held.
Leach invited Frist to testify at a July 2006 hearing, consisting only of anti’s, held in Iowa on Internet gaming. Frist announced that he would make prohibition one of his priorities, thus scoring points with both the religious far right and Leach.
Frist first tried to attach the prohibition to the defense appropriations bill. He was shot down by senators who didn’t care about Internet gambling, but also didn’t want something as important as defense put at risk by a completely unrelated issue.
Then-Senate Minority Leader Harry Reid (D.-NV), announced that Frist would not get away with attaching his pet prohibition to any other unrelated bill.
Reid says he is personally against Internet gaming. But coming from Nevada, he obviously listens to what landbased casinos want. And in April 2006, those casinos announced, through their lobbying arm, the American Gaming Association they had switched from pushing for prohibition to having Congress conduct a legitimate study.
Frist would not give up. Rumors are that Leach insisted on a ban going through before the November 2006 election, when it seemed likely that Republicans would lose at least the House.
Versions of the SAFE Port Act had separately passed both the House and Senate. Representatives from both bodies were assigned to a conference committee, with instructions on the areas they could negotiate in order to resolve minor differences. Obviously, Internet gambling was not on their “to do” lists.
But Frist attached his pet prohibition act to this bill. When Sen. Frank Lautenberg (D.-NJ) asked to see the new language, he was told, “No.” When he asked if someone would simply explain to the conference committee what this amendment to the port securities bill would do, he was again told, “No.”
Under the rules, the bill that comes out of a conference committee, called the report, cannot be amended. So, the message was clear. The Republicans had the votes to get anything through both chambers of Congress, and if the Democrats didn’t like it, they could always vote against port security, and be depicted as being weak on terrorism.
There wasn’t much Reid and the Democrats could do, especially because they were aching to be gone from Washington to campaign to keep their jobs.
Pres. George W. Bush, would not, of course, veto the SAFE Port Act.
The Frist bill is now law. But with more than a few ironies.
First, Jim Leach will play no role as a king-maker. He won’t even have a vote. In what many consider the greatest upset of the 2006 mid-term elections, Leach was defeated by his Democratic opponent. A poll by the Poker Players Alliance indicates Leach’s role in bringing prohibition back to American may have contributed to his narrow loss.
Second, the Department of Justice and other opponents of Internet gambling are not thrilled with the Frist bill. No one had a chance to give any input, or even to look it over for typos. So, it does not accomplish the DOJ’s main legislative goal: getting the Wire Act clarified to clearly cover all forms of Internet gambling.
Instead, it creates new uncertainties. I have given legal opinions on whether the new Act criminalizes gaming that was previously legal; to what extent state lotteries, Indian tribes and race books can take bets online; whether skill contests and no-purchase-necessary games are legal; and whether a state can authorize Internet poker, limited to residents of that state.
With Democrats in control, the playing field has changed, but only slightly. Congress still does not care about Internet gambling. There will be an 18-month study. But Congress will do nothing before 2009. Even then, any bill would take almost two years to pass both the House and Senate. So, the law will stay as it is until at least 2010.
After that, don’t expect a repeal. Gambling has always been an issue left to the states, so Congress will eventually decide that, like interstate horse-racing, it is up to each state to decide for itself whether it will allow its residents to bet from home on poker, bingo, state lotteries and casino games.
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© Copyright 2006. Professor I Nelson Rose is recognized as one of the world’s leading experts on gambling law. His latest books, Gaming Law: Cases and Materials and Internet Gaming Law, are available through his website, www.GamblingAndTheLaw.com.