Friday, January 12, 2018


With the zeal of proponents of the Prohibition Amendment, four Republican House members wrote a letter on Dec. 19 to Deputy Attorney General Rod Rosenstein protesting an interpretation of the Wire Act by the Office of Legal Counsel that lets State jurisdictions decide whether to permit Internet gambling within their borders.

The Republican quartet—Representatives Dan Donovan of New York, Tom Garrett of Virginia, Brian Fitzpatrick of Pennsylvania, and Louie Gohmert of Texas—ordinarily champion State’s rights based on the wisdom of Justice Louis D. Brandeis in New State Ice Company v. Liebmann (1932):

“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

The principles of Donovan, Garrett, Fitzpatrick, and Gohmert, however, are like a restricted railroad ticket, good for this day and train only. And like Prohibition, their proposed national ban on intrastate Internet gambling would be a cure worse than the disease. To protect States that would prohibit it, Congress could make illegal any Internet gambling across state lines into their respective jurisdictions as has been done for intoxicating liquors. The 21st Amendment that repealed the Prohibition Amendment provides: “The transportation or importation into any State…for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

The Republican quartet imagine a Pandora’s Box of horribles with intrastate Internet gaming regulated by the States rather than banned by the federal government. They speculate about exploitation by criminals; money laundering; corrupting children; and, risking use of online casinos by terrorist organizations. That argument proves too much. The Internet sans online casinos is similarly vulnerable to exploitation to perpetrate such evils, yet the quartet is campaigning for an Internet ban.

Enlightened legislation is guided by the lamp of experience, not by conjecture. The science of government is the science of experiment. At present, experience with state regulation of Internet gambling within their borders does not corroborate the evils the Republican quartet professedly fear. Maybe additional experience will prove otherwise. But under the United States Constitution where liberty and States’ rights are the rule regarding sumptuary laws and federal encroachments are the exception, the burden of proof is always on the federal government to demonstrate a need to restrict individual choice and state experimentation. The Republican quartet has not come close to satisfying that threshold for a general congressional prohibition on intrastate Internet gambling.

Their letter turns the Constitution on its head. They argue: “A decision of this import [to permit States to authorize intrastate Internet gaming], which carries such law enforcement risks as this does, should only be made after a full and public debate in Congress.” To the contrary, a federal decision to encroach on liberty and override State’s rights should come only after fully and publicly documented proof of evils based on experience plus convincing evidence that a federal ban is urgent. The Republican quartet has not shouldered that burden regarding intrastate Internet gambling.

Depend upon it. Sheldon Adelson and his fellow casino moguls are funding the quartet directly or indirectly because fearful that Internet gambling will slash their staggering profit margins. As “Deep Throat” in the Watergate movie “All the President’s Men” advised, “Follow the money.”

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