BY GERARD SCIMECA, CASE CHAIRMAN — December 18, 2017
Abraham Lincoln said the best way to get a bad law repealed was to enforce it strictly. If this maxim has any weight, then surely it would apply to PASPA (the Professional and Amateur Sports Protection Act), the 25-year-old federal law that prohibits the states from legalizing or establishing their own laws for sports wagering. After two and a half decades of strict enforcement, failed outcomes and a heavy shift in popular opinion, it appears that, thankfully, this disastrous law may finally be headed to the curb where it belongs.
Signed by President Bush in 1992 with the intention of protecting the public from the supposed ills of sports betting, the evidence is clear and convincing that PASPA has been a spectacular failure. Far from upholding any legal order, PASPA has created an ideal environment for rampant illegality to thrive and prosper. By criminalizing a pastime that millions of Americans, including Presidents, enjoy, PASPA has succeeded in driving the billions spent on sports wagering underground, where it helps fund organized crime and prop-up shady overseas operators.
The disastrous impact of PASPA hasn’t been lost on law enforcement, who have taken an active role in promoting its repeal. Oakland County (Mich.) Sheriff Michael Bouchard, who also holds a prominent position in the Major County Sheriffs of America, wrote this month how PASPA, by forcing sports betting into the shadows, “supports a whole host of other illegal activities, from money laundering and racketeering to extortion and drug trafficking.” Far from fighting crime, PASPA is a significant factor in bolstering it.
And this is far from the only way in which PASPA has tortured the law. Just this month the Supreme Court listened to oral arguments on the constitutionality of PASPA in a case filed by New Jersey, who’s been fighting to establish its own set of regulations, oversight and licensing for in-state betting. At issue is whether PASPA violates the 10th Amendment right of states not to be “commandeered” by the federal government. While Congress has broad powers to regulate interstate commerce, it has no authority to force laws onto the states absent a comprehensive federal scheme. But PASPA has no federal scheme, it just commands states to obey its dictate, a clear violation of the principles of federalism and the 10th Amendment.
The Court would never have decided to hear this case unless there were grave concerns over PASPA’s constitutionality. Only twice has the Court struck down laws on grounds of anti-commandeering, and PASPA has achieved the dubious distinction of likely becoming the third. The mood of the Court was best expressed by Justice Kennedy, according to observers, who said during oral arguments, “[PASPA] leaves in place a state law that the state does not want, so the citizens of the State of New Jersey are bound to obey a law… the federal government compels the state to have. That seems commandeering.”
Legal analysts at Scotusblog were confident that the Court will side with New Jersey and overturn PASPA, which raises the issue of where we do go from here? The first thing to recognize is that it’s quite a different world from 1992, when the internet, for all practical purposes, didn’t even exist. Digital entertainment has changed the way we live, while the proliferation of fantasy leagues, streaming content, and instant information at our fingertips has changed the way millions watch and enjoy sports.
Leaders in professional sports also recognize the evolving landscape, which is why prominent figures such as NBA Commissioner Adam Silver, who once opposed betting on sports, now support it. He understands his business, and his customers. With upwards of $400 billion bet each year on sporting events, it’s no surprise that a majority of Americans believe it should be legalized. People know that pointless laws such as gambling bans only work to the benefit of criminals and overseas operators who offer virtually no consumer protections. Instead of funding crooks, sports wagering could – when properly licensed and regulated within the states – spawn legitimate business enterprises that create jobs and raise tax revenue for states and local communities.
Las Vegas, the capital of gambling, now has an NHL team, and in two years (after much courting) will be home to the NFL’s Raiders. The days of gambling and sporting events engaged in the shadows is long past. So too should the days of the federal government dictating to states how to legislate on matters of individual choice and the leisure activities of their citizens.
Federal legislation could set a framework for sports betting that includes basic standards and protections that allow states to freely determine their own laws. Or absent congressional action, the matter can be left entirely to the 50 individual states. Either scenario is far more preferable than the failed scheme currently in place, which likely won’t last through next year. With a bad law set to be repealed, consumers and sports enthusiasts will be well-served if Congress actually listens to them this time around.
