A New Bill Would Amend The Wire Act, But Not In The Way You Think

As he did in the last session, Rep. Tony Cardenas (D-CA) has introduced legislation, The Greyhound Protection Act of 2021, that would amend the 1961 Wire Act to prohibit greyhound racing.

The bill, HR 3335, has been referred to the Subcommittee on Crime, Terrorism, and Homeland Security. It seeks to “amend the Wire Act to clarify that gambling on commercial greyhound racing and field coursing using wire communication technology is prohibited.”

Greyhound racing is on the verge of extinction in the US, but online wagering is widely available from other parts of the globe. Its existence, even virtually, is controversial, as greyhound racing is seen as cruel and inhumane and has come under fire from animal rights groups. The new legislation would put an end to wagering on dogs in the US.

The chances that Congress tackles this issue are slim, but if it decides to amend the Wire Act to stop greyhound racing, why stop there?

Amending the Wire Act for a Different Reason

The attempt to prohibit greyhound racing raises an interesting question: if Congress is willing to open the Wire Act to address greyhound racing, what stops them from clarifying the entire law to deal with online gambling.

The Wire Act is a jumbled blob of confusion that has resulted in states sidelining online gambling legislation or crafting their laws to fit within the current interpretation of the framework of the Wire Act. It has also led to multiple Department of Justice legal opinions as the department has flip-flopped on the issue multiple times.

• In 2002, the DOJ issued a letter stating that online gambling violated the Wire Act.
• In 2011, the Office of Legal Counsel issued an opinion that stated the Wire Act only applied to sports betting.
• In 2018, the OLC (under a new administration) reversed course and issued a new opinion that recoupled other forms of online gambling to the Wire Act.

The most recent OLC opinion ended up in the courts, as the New Hampshire Lottery and its supplier Neopollard challenged the opinion. The New Hampshire Lottery and Neopollard have prevailed at the district and appellate level, and the DOJ has decided against bringing the case further up the legal food chain.

However, as Betting USA previously speculated, nothing stops a future administration from interpreting the Wire Act in another way. The Wire Act will continue to be the gambling industry’s Sword of Damocles.

The First Circuit ruling provides additional precedent and further bolsters the case for a narrow reading of the Wire Act (one that doesn’t apply to online casino, poker, and lottery). Still, it stops short of settling the matter.

That’s a pity, as this was a slam dunk opportunity to put the Wire Act-online gambling debate to bed once and for all. As it stands, the specter of another OLC opinion persists, and that provides a convenient excuse for states to continue to resist passing online gambling legislation.

No matter how much state attorneys general want the Biden administration to renounce the 2018 opinion, that repudiation has a shelf-life. The next administration can do as it pleases.

Final Thoughts

If Congress is going to amend the Wire Act, it should use the opportunity to go well beyond greyhound racing. The law was written in 1961 when telephones were the means of communication.

It is in desperate need of a makeover to deal with the internet and the new reality of online gambling. Addressing greyhound racing but not dealing with online sports betting seems asinine. Additionally, leaving its application to online poker, casino, and lottery mired in a never-ending debate around comma placement intact would be foolish.

Of course, foolish is par for the course in Congress.