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The Day Congress Outlawed Sports Betting
Gambling and the Law™
by I. Nelson Rose
Never before did an act of Congress so blatantly discriminate among the states.
Ater losing the Republican presidential nomination to George W. Bush, Arizona Sen. John McCain took up a new crusade: sports betting. The media reported McCain’s crusade as if this were the first time the federal government confronted Evil Gambling and Organized Crime. In fact, about once a decade some senator or representative trying to make a name for himself pushes for federal laws along these lines.
In the 1930s, Sen. Royal S. Copeland of New York introduced the federal Anti-Racketeering Act. In the early 1950s, Sen. Estes Kefauver held the first nationally televised hearings, grilling witnesses like “Bugsy’s Baby,” Virginia Hill, about the connection between gambling and the mob. Kefauver got the Democratic nomination for Vice President. The country got new federal laws: a tax on wagers, a ban on gambling ships, and the main restriction on gambling devices, the Johnson Act. Attorney General Robert Kennedy’s War on Crime in the early 1960s led to the Wire Act, the major legal obstacle facing Internet gambling today. Congress also made it a federal crime to ship wagering paraphernalia between states or travel across a state line to promote illegal gambling. The Nixon Administration’s contributions were the Organized Crime Control Act of 1970, making violation of a state anti-gambling law a federal crime, and adding gambling to the list of crimes that would authorize a wiretap.
But the most amazing attempt by Congress to control Evil Gambling was Sen. Bill Bradley’s 1992 “Professional and Amateur Sports Protection Act.” In the 1970s, the Delaware State Lottery started taking bets on professional football games. The National Football League sued — and lost! Sports teams make a lot of money from their tradenames, and the NFL claimed that people might think it was endorsing gambling. The Lottery got around both those problems by having people bet on “Los Angeles” rather than on the “Rams.” The Oregon State Lottery followed, and expanded the bets to include games of the National Basket-ball Association. That was too much for Sen. Bradley, who had been a star with basketball’s New York Knicks.
Sen. Bradley’s Act makes it unlawful for any government, including states and tribes, to authorize legal wagers that are based in any way on sports events. States, like Nevada, with existing sports betting were grandfathered in. The casinos in New Jersey had enough political clout to get Congress to give them one year to get sports betting legalized in that state. But Sen. Bradley, who also was from New Jersey, had even greater political power. He single-handedly prevented the issue from even being put on the ballot; the voters of New Jersey never got a say.
The Bradley Act is a strange and even frightening federal law, for anyone who knows American history. Following the American Revolution, the states decided to create a federal government with powers limited to those spelled out in the U.S. Constitution.
Only two provisions of the Constitution might apply. The first is Congress’s power to regulate Interstate Commerce. But the Bradley Act prevents a state legislature from passing a state law that would allow a citizen of that state to make a legal sports bet with another citizen of that same state.
The Constitution also gives Congress power to protect tradenames. But the Bradley Act allows licensed sports books in Nevada to continue to use actual team names, as they had been doing for decades.
Never before did an Act of Congress so blatantly discriminate among the states.
Never before did an Act of Congress so restrict the right of states to raise revenue.
And never before did an Act of Congress give private organizations the power to enforce a federal law against a state. For the most frightening provision of the Bradley Act allows a professional or amateur sports organization to sue a state to stop legal sports betting.
The U.S. Supreme Court has made it clear that a state cannot be sued without its consent. If an Indian tribe or its own state employees cannot sue a state, what chance is there that the Court would allow a suit by an amateur sports organization?
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