Enforcing a Stupid Law

12 September 2008

The problem with political jokes is they sometimes get elected.


What do you do with a law that should never have been written?

By this time, most people who are interested in Internet gaming know the sordid history of the Unlawful Internet Gambling Enforcement Act: It was written by the failed politician William H. Frist, Republican of Tennessee, who used his position as then majority leader of the Senate to ram it through, as part of his vain attempt to run for president.

Frist didn’t care about Internet gaming, but he thought he could win points with James A. Leach, then a powerful Republican member of the House of Representatives from Iowa, the state with the first presidential caucuses. Frist attached the UIGEA at the last minute to the Safe Port Act. Even though there was no time to read the bill, it was approved nearly unanimously, since voting against it meant voting in favor of Islamic terrorists.

Ironically, Leach lost his seat in an upset election, and Frist not only did not become president, but could not even keep his party from losing control of the Senate.

President George W. Bush signed the bill on October 13, 2006. So even though virtually no one really wanted it, the UIGEA is now the law.

But no one knows what to do with it.

The UIGEA scared every publicly traded Internet gambling company into dropping out of the U.S. market. Even privately owned Web operators restructured, separating their operations, so American executives have nothing to do with the gaming side of the business.

But this was probably an overreaction, because -- despite reports in the press -- the new law does not make Internet gambling illegal. The UIGEA does only two things: It creates a new crime, being a gambling business that accepts money for an unlawful gambling transaction, and it requires federal agencies to issue regulations requiring financial institutions to identify and block the transfers of funds for these illegal bets.

The new crime has proved to have no teeth. I am unaware of it ever having been used against an Internet gaming operation. When the Department of Justice decided to go after the founders of Neteller, for example, it did not charge them with violating the UIGEA. Perhaps this was because the founders’ active involvement with Neteller had ended before the UIGEA became law. Or perhaps the DOJ knew that it would be opening a can of worms if it had to prove this new crime had been committed.

The problem for the Justice Department is that the UIGEA does nothing to clarify whether a particular online wager is illegal. "Unlawful" in the UIGEA is defined as violating some other federal or state law. So, if the gambling is already illegal, this new crime adds very little. If, on the other hand, the gambling was legal before the UIGEA was enacted, it is still legal.

The regulations have also so far been mere threats. The federal agencies -- the Treasury Department, Federal Reserve Board, with input from the Justice Department -- did finally issue proposed regulations, ten months late. These were immediately subjected to a barrage of criticism. By the beginning of 2008, 217 written comments had been submitted, almost all of them negative.

The regulators admitted that it was beyond their capacity to determine whether any particular transaction was “unlawful gambling.” But the proposed regs require bank employees to do exactly that. This was naturally met with derision.

On April 2, 2008, Barney Frank, Democrat of Massachusetts, chaired a hearing of the House Financial Services Committee titled "Proposed UIGEA Regulations: Burden Without Benefit?" Witness after witness joined Frank and his cosponsor, Ron Paul, Republican of Texas, in blasting the proposed regs as unworkable. They proposed killing the proposed regs and requiring the federal regulators to devise a way of knowing whether a transaction was illegal gambling.

It looked like the Frank-Paul bill would pass, because it gained powerful allies: financial institutions. Banks were concerned that they might be fined if they transmitted funds that the government later decided they should have blocked. And banks called the proposed regs "an unfunded mandate," meaning the federal government was requiring them to do something, which will cost billions of dollars, without being reimbursed.

In a strange twist, the Frank-Paul bill became a political football in this most political of years. Despite the fact that no one had even read the original UIGEA, Republican leadership decided that stopping Internet gambling could be made into a motherhood-and-apple-pie issue -- just think of all those foreigners coming into American homes to exploit little children. Because the bill was a change in the law, it required a majority to go to the floor of the House. It therefore died on an exact tie, party-line vote, 32 to 32.

But advocates like the Poker Players Alliance did not give up. They continued to educate members of Congress about what the UIGEA and its proposed regs would do.

In a very sophisticated maneuver, the PPA got its members to flood representatives' offices with angry phone calls and emails, convincing four of the Republicans to send a letter to the agencies. Having voted against the Frank-Paul bill, to stop the proposed regs and define "unlawful Internet gambling," they now asked the agencies . . . to stop the proposed regs and define "unlawful Internet gambling."

So, will the proposed regs become final? The bureaucrats in the Treasury and Fed know how to count votes. The agencies know that with a new president and Congress, the UIGEA itself could be undone, let alone its regulations.

The future depends on which party wins in November.

If the Republicans win, the regs will be written just about as is. The PPA couldn’t even get anti-Internet-gambling language permanently removed from the party’s platform.

But if the Democrats win the White House, they will keep control of the House, so Frank will remain Chair of his Committee and will again try to kill the proposed regs. Harry Reid, Democrat of Nevada, will remain Majority Leader and push for what the Nevada casinos want: The UIGEA and its regs to be amended to allow licensed casinos to take bets online from any state that does not object.

Copyright 2008. All rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I. Nelson Rose.

© Copyright 2015, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I. Nelson Rose.

I. Nelson Rose

Articles by Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law. Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law. A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States. With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic. He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

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