Op-Eds Abound Urging DOJ to Leave Wire Act Alone
During the holidays, word spread that the US Department of Justice had written a reversal of a pivotal 2011 Wire Act decision. The new opinion from the DOJ’s Office of Legal Counsel reportedly overturned that decision, which had allowed states the unequivocal right to offer online lottery ticket sales and online gambling within their borders.
In the wake of the news that the decision may have been overturned, many awaited the publication of the new opinion. But in the case that it hadn’t been made official or wasn’t yet written, numerous groups opposed to such a move began to speak out.
Op-eds have been published in various media outlets in recent weeks decrying that new opinion and arguing against it. Most of the pieces have appeared on conservative-leading and libertarian websites, but the message is clear: Leave online gambling alone.
"The original intent of the Wire Act was that it only applied to sports betting and never sought to strip states of their power to decide whether or not to legalize any form of intrastate gambling." CEI's @michelleminton discusses rumored DOJ memo https://t.co/9YoqmE3Kny
— Competitive Enterprise Institute (@ceidotorg) December 20, 2018
One of the primary beliefs at the core of the op-eds is that states should be able to regulate gambling if their constituents support the activity. And that was the message of the article published on Reason.com: “The DOJ Shouldn’t Reignite the Fight Against Intrastate Gambling.” And the lede sums up the piece: “Respect federalism and leave the states alone.”
Essentially, the article aims to reach the ears of Republicans, the politicians most often eager to limit gambling rights. “Some Republicans,” Veronique de Rugy, Ph.D., writes, “eager to strike a blow to the competitors of a billionaire donor, have pushed legislation to do what the original Wire Act did not do – prohibit states from regulating online gambling among their citizens as they see fit. Thankfully, their attempts at cronyism have thus far failed. They have now put their hope in the Trump administration to rewrite the rules on its own and undertake exactly the sort of executive power grab that they falsely claim happened in 2011.”
Further, she argues that the Wire Act was never intended to limit states’ rights regarding gambling in the first place, and the 2011 decision by the DOJ righted that incorrect interpretation.
Wire Act Intent
The Reason article and several others articulating the same ideas point to Michelle Minton’s 2014 paper for the University of Nevada Las Vegas’ Center for Gaming Research entitled, “The Original Intent of the Wire Act and Its Implications for State-Based Legalization of Internet Gambling.” The piece is based on a great deal of historical and judicial precedent, all of which Minton points to in the 13-page memo issued by the Office of Legal Counsel for the DOJ in 2011.
In the end, the DOJ concluded that “interstate transmissions of wire communications that do not relate to a sporting event or contest fall outside of the reach of the Wire Act,” which Minton claims restored the law to its original understanding.
Minton, in her role as a senior fellow at the Competitive Enterprise Institute (CEI) has continue to advocate for the rights of states to regulate online poker, lotteries, and casino games per that UNLV paper and her extensive research.
DoJ memo tomorrow likely 2 say a 1964 law intended 2 ban online gambling (yes, in 1964) + Schumer/Hatch bill that forces states 2 get DoJ permission 4 state sports betting laws. Now, Graham/Feinstein will push RAWA…again. Guess that medal of freedom wasn't enough 4 Adelson.
— michelleminton (@michelleminton) December 20, 2018
Adelson is the Enemy
Most of the articles on this topic have been quick to point to the money behind the movement to reverse the 2011 DOJ decision. Casino billionaire Sheldon Adelson has not been shy about dumping millions of dollars into his Coalition to Stop Online Gambling lobbying organization, which consistently spouts scare tactics about children gambling and addicts who “click their mouse and lose their house.” In addition, Adelson has donated millions to the political campaigns of members of Congress like Senator Lindsey Graham, who have tried at every opportunity to pass a Restoration of America’s Wire Act (RAWA) law to outlaw online gambling at the federal level. And with all of those opportunities having failed thus far, Graham has become Adelson’s mouthpiece in correspondence with the DOJ about the 2011 opinion and the desire to undo it.
— Rich Muny (@RichMuny) January 10, 2019
In the Reason article, the author writes, “Politicians who out to know better shouldn’t make common cause with moralists just because a casino owner offered up some campaign cash.”
An article in Newsmax states, “The casino tycoon Adelson is one of the very few in the industry who has not accepted the move to the digital world and is fighting hands and feet to outlaw online gambling.”
An op-ed on the Heartland Institute’s website cites Adelson as the “crony billionaire” in its title and goes on to talk about his failed RAWA attempts. That makes the DOJ reversal his “Hail Mary.” But the author concludes, “States should decide for themselves whether or not they want online gambling. A single billionaire uber-crony shouldn’t make fifty different states’ decision for them.”
Decision in Limbo
Insiders claim that the new decision by the Office of Legal Counsel has been written, but it is unclear why it hasn’t been published.
New: Acting Attorney General Matthew Whitaker today rescinded 69 guidance documents by the DOJ. The 2011 opinion from the Office of Legal Counsel about the Wire Act was not one of them. Story about the possibility of this happening from earlier this week: https://t.co/NKrvQ2Btgu
— Dustin Gouker (@DustinGouker) December 21, 2018
However, no major decisions have been posted on the OLC’s website since November 2017. This could be a result of an understaffed Department of Justice or, as the website suggests, the government shutdown. “Due to the lapse in appropriations,” the home page reads, “Department of Justice websites will not be regularly updated.”
For the time being, all interested parties must wait to see what has been done behind the scenes at the DOJ.