The Supreme Court’s decision ruling PASPA unconstitutional earlier this week barely had time to hit the newswire before the we heard the first demands for federal legislation. Within hours of the Supreme Court’s decision, Utah Senator Orrin Hatch announced plans to introduce legislation that would regulate sports betting across the nation.
Senator Orrin Hatch said this on Monday:
“The problems posed by sports betting are much the same as they were 25 years ago. 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.”
Senator Hatch did not offer details on what his bill would seek to do, but the statement issued by his office did indicate he wants to regulate sports betting rather than prohibit it.
Interestingly, Senator Hatch was one of the four original authors of the Professional and Amateur Sports Protection Act of 1992 that prohibited the states from legalizing or regulating sports betting. Seeing his original sports betting law ruled unconstitutional clearly hasn’t dampened Hatch’s enthusiasm for sports betting legislation.
The NFL, NBA and the NCAA have also issued statements signaling support for federal regulation. On Monday, the NFL said this:
“The NFL’s long-standing and unwavering commitment to protecting the integrity of our game remains absolute. Congress has long recognized the potential harms posted by sports betting to the integrity of sporting contests and the public confidence in these events.
“Given that history, we intend to call on Congress again, this time to enact a core regulatory framework for legalized sports betting. We also will work closely with our clubs to ensure that any state efforts that move forward in the meantime protect our fans and the integrity of our game.”
Ruling Does Not Forbid Congress from Regulating Sports Betting
The Supreme Court’s decision ruling PASPA unconstitutional does not prevent Congress from regulating sports betting. The problem with PASPA was the way it was written; it commandeered state legislatures by dictating in plain text that no state may authorize or legalize sports betting.
Had PASPA declared sports betting illegal for individuals, it would not have run afoul of the anti-commandeering doctrine of the Tenth Amendment. Congress may regulate the activity of private actors, but it cannot regulate the activity of the states.
Assessing the Odds of Federal Regulation
Above the Law has a more nuanced explanation of the decision, but the point is Congress may still pass laws to regulate sports betting. The odds of any law of this sort making it through Congress do not look great at this point in time.
Congress could even move to prohibit sports betting for everyone across the nation. However, that outcome is an even bigger longshot with all the momentum now on New Jersey’s side. Voting to prohibit sports betting would be an unpopular move for most in Congress.
What Senator Hatch’s plan may look like is still a matter of speculation, but given his long and unexceptional tenure in Congress, I would venture to guess the pro sports leagues have his ear. Seeing a potential Hatch bill call for the controversial integrity fee, for example, would not be exceptionally surprising.
That’s not to mention Senator Hatch has announced his imminent retirement. Getting something passed during his last legislative session amidst the efforts of so many other states that are treading their own path in regulating sports betting does not look like a likely outcome.
Any mention of an integrity fee in Hatch’s proposed legislation will further diminish the odds of it passing. At least 20 states already have active or pending bills seeking to legalize sports betting and the issue of the integrity fee has already been rejected by multiple lawmakers who have painted it as nothing more than a cash grab.
Even a bill limited in scope would likely face an uphill battle. New Jersey gained the support of the attorneys general of twenty states in the run-up to the Supreme Court case. Those AGs were not concerned so much with sports betting specifically, but in protecting states’ rights. Although there’s nothing stopping Congress from regulating sports betting, it wouldn’t be a good look to bring the federal government back into play so soon after a major states’ rights victory.
Of course, this is all speculative. Stranger things have happened in DC than lawmakers passing a controversial bill. However, if I had money on the line, I’d bet against Washington enacting sports betting regulation that is overly prohibitive in nature.