Yesterday, the Supreme Court struck down the law Congress passed 26 years ago that forbade 49 state legislatures from allowing sports gambling. That doesn’t make the issue dead in the water, at least not for one of the original authors of the Professional and Amateur Sports Protection Act (PASPA). Sen. Orrin Hatch plans to use his last year in office creating new legislation that will allow Congress to impose federal regulation of any interstate sports gambling, especially in the online arena, so to speak:
“The problems posed by sports betting are much the same as they were 25 years ago,”Hatch said. “But the rapid rise of the Internet means that sports betting across state lines is now just a click away. We cannot allow this practice to proliferate amid uneven enforcement and a patchwork race to the regulatory bottom. At stake here is the very integrity of sports. That’s why I plan to introduce legislation in the coming weeks to help protect honesty and principle in the athletic arena. I invite stakeholders and my colleagues on both sides of the aisle to join me in addressing this important issue.”
Note that this is quite a bit different than PASPA. The law overturned by the Supreme Court in Murphy v NCAA flat-out prohibited states other than Nevada from legalizing sports gambling — but didn’t ban it, either. That ran afoul of the anti-commandeering principle embodied in the Tenth Amendment, Justice Samuel Alito ruled in his majority opinion. If the federal government wants to ban sports gambling or regulate it directly, Alito suggested, it has the authority to do so, but not to tell state legislatures that it must act in a certain manner absent that federal action.
Can Hatch make the sale on federal control over sports gambling? He will have some powerful allies on his side:
The National Basketball Association and National Football League called for a federal framework that would apply to all states moving forward with sports gambling legislation.
“We remain in favor of a federal framework that would provide a uniform approach to sports gambling in states that choose to permit it, but we will remain active in ongoing discussions with state legislatures,” NBA Commissioner Adam Silver said in a statement. “Regardless of the particulars of any future sports betting law, the integrity of our game remains our highest priority.”
The NFL said in a statement that it would ask Congress to “enact a core regulatory framework for legalized sports betting.”
Major League Baseball said it would “continue to support legislation that creates air-tight coordination and partnerships between the state, the casino operators and the governing bodies in sports toward that goal.”
The question ahead for members of Congress, and especially for Republicans and conservatives, will be just how much federal control they’re willing to impose. The party and the movement has changed since 1992, I write in my column at The Week, growing more libertarian. There may not be as much appetite for expanding federal control over sporting issues as there was 26 years ago:
In one sense, this ruling should please conservatives. The Supreme Court has not often gone out of its way to strengthen the Tenth Amendment, a key constitutional touchstone for small-government activists. Murphy v. NCAA had already been cited as a potential game-changer for limiting Washington’s power — an antidote to previous expansive precedent on the Commerce Clause, starting with Wickard v. Filburn.
Justice Samuel Alito didn’t upend Wickard or limit the Commerce Clause in his governing opinion. However, he did set a hard limit on Congress’ ability to dictate what state legislatures can and cannot do without enacting a full federal prohibition on an activity, which PASPA avoided. The Constitution allots limited authority to Congress, Alito wrote, but “all other legislative power is reserved for the states, as the Tenth Amendment confirms.” Alito added: “And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the states.” …
When he co-wrote PASPA in 1992, Hatch was one of the stronger conservative voices in the upper chamber. At that time, the three-legged stool of the right still prevailed: social conservatism, fiscal discipline, and a strong military. Hatch’s PASPA fell clearly into the first leg, a moral stricture against vice that has the potential to corrupt not just governments but souls.
The world has changed since those days, and so has conservatism. While abortion still occupies its own place in the conservative agenda, the prominence of other social issues has fallen in favor of a more libertarian approach. Younger voters see issues like gambling and recreational use of marijuana as personal choices more than moral or public policy issues. In March, for the first time ever, Gallup found a majority of Republicans in favor of marijuana legalization, noting that “the trajectory of Americans’ views on marijuana is similar to that of their views on same-sex marriage over the past couple of decades.”
In those areas, Republicans have often argued that these issues are best left to the states, not to the federal government. That may be tougher to argue when dealing with online gambling, but states can and do regulate online commerce within their own sovereignties, as tax collections demonstrate. The question will be this: do we really want to expand federal government into more areas of personal choice and/or to act as the guarantor of private industry? The sports leagues seem to have survived for decades well enough with Nevada’s legalized sports betting and lots of illegal sports betting taking place everywhere else, enabled by online communications.
If nothing else, this will set up an interesting debate on the Right over the principles of smaller government, states’ rights, and moral signaling.