All signs point to Sheldon Adelson’s wishes to ban online gambling in the United States being smashed to bits. It has not happened yet, and there are many parts of the machine still in working order, but Congress is preparing to strike another blow against the Wire Act opinion that Adelson so desired.
A bipartisan group in Congress is currently pushing an amendment to the 2020 Appropriations Act that will refuse funding for any enforcement of the latest Wire Act opinion. That opinion was written by the US Department of Justice’s Office of Legal Counsel in November 2018 and made public in January 2019.
This will be the latest of several hits against the Adelson-supported decision from the DOJ. It follows the US District Court decision earlier this month from Judge Paul Barbadoro that ruled against the DOJ and set aside its 2018 Wire Act opinion, noting that the Wire Act clearly only applies to sports betting.
Just after that District Court decision, the new US Deputy Attorney General officially put off any enforcement of the Wire Act until 2020 for any issues other than sports betting.
Now, states with online lotteries and other forms of online poker and gambling wait to see if Congress will succeed in cutting funding to Wire Act enforcement.
https://twitter.com/OPRupdate/status/1141043355037646849
Amendment to Appropriations
The major bill that Congress is currently examining for approval is H.R. 3055, otherwise known as the Commerce, Justice, Science, Agriculture, Rural Development, Food and Drug Administration, Interior, Environment, Military Construction, Veteran Affairs, Transportation, and Housing and Urban Development Appropriations Act, 2020.
We’ll just call it the Appropriations Act.
The bill will pass. It approves funding for all of the sectors listed in its title. The contents of it may change to a certain degree, and amendments may be attached, but it will pass in the end.
All amendments were introduced last week, and they are being considered this week. As it stands on June 20, the Rules Committee did agree to accept the bill on June 19 by a vote of 231-to-195.
As for amendments to Division A of the bill, there are 159 of them. Division B has 76, Division C has 153, Division D has 54, Division E has 121, and Division F has two. However, some of them have been withdrawn, others resubmitted, and only some accepted.
The one pertaining to the Wire Act opinion and its funding was originally submitted by Kentucky Representative Andy Barr (R) and co-signed by Georgia Rep. Hank Johnson (D), and Georgia Rep. Sanford Bishop (D). That version was then withdrawn.
It was replaced by an amendment that looked to be an exact replica only submitted directly by Rep. Johnson and co-signed by Barr, Bishop, and New Hampshire Rep. Chris Pappas (D). And the one-paragraph amendment simply reads:
“At the end of Division A (before the short title), insert the following: Sec. ___. None of the funds made available by this Act may be used to enforce the Department of Justice Office of Legal Counsel memorandum entitled ‘Reconsidering Whether the Wire Act Applies to Non-Sports Gambling’ (issued on November 2, 2018).”
It is unclear when the website will be updated to reflect the outcome of the vote on this amendment.
What It Means
As it appears, the amendment intends to refuse funding for any type of enforcement of the recent Wire Act opinion in 2020. This extends one year beyond the US Deputy Attorney General hold on any enforcement through 2019.
This means that the Wire Act, as it pertains to the sports betting, can be enforced as it always has been without official controversy. Any other interpretation of the Wire Act, such as the recent Office of Legal Counsel opinion, will not be enforced by the DOJ whatsoever as it pertains to online lotteries, online poker, and online casino games.
The sponsors of the amendment to stop funding all hail from states with an interest in the issue, mostly for their online lottery businesses. As the US District Court already sided with their interests, they seem to be on solid ground to save their online industries from any DOJ enforcement for at least another year.
The only potential change could happen if the DOJ decides to appeal the District Court decision, but that will take time to make its way through the appeals process and possibly on to the US Supreme Court. Meanwhile, the DOJ cannot defy the ruling of the District Court anyway.
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