Public Gaming Magazine November-December 2015

// PUBLIC GAMING INTERNATIONAL // November/December 2015

Mark Brnovich, Attorney General

OFFICE OF THE ATTORNEY GENERAL

STATE OF ARIZONA

Senate Russell Office Building 413

Washington, D.C. 20510

Dear Senator Flake:

I am writing to register my opposition to S. 1668 (Restoration of America’s Wire Act). I believe that

the best place to determine gambling policy—prohibition, regulation or something in between—is at

the state level, where historically such decisions have been made.

With the current proliferation of gambling over the Internet, including the rise of Daily Fantasy Sports

games (DFS), states must consider both the legality and possible regulation of such activities. Recently,

some states have moved to petition the federal government to step in with national laws to address

these issues, which I believe is a mistake. As someone who has spent a great deal of my career regulating

gambling as the Director of the Arizona Department of Gaming and prosecuting gambling crimes as an

Assistant United States Attorney, I would like to offer the following information for your consideration.

Both the structure of the Constitution and the Tenth Amendment reserve to the states the ex-

ercise of their traditional police powers. See, e.g., Roth v. U.S., 354 U.S. 476, 493 (U.S. 1957).

Gambling is an area traditionally regulated pursuant to the police power, and has long been

recognized as such by the courts. Beginning with Champion v. Ames, 188 U.S. 321, 357 (1903),

the Supreme Court has acknowledged that “a state may, for the purpose of guarding the morals

of its own people,” regulate or even forbid gambling “within its limits.” The role of Congress,

consistent with principles of federalism, is confined to the regulation of interstate wagering.

/Id. (“Congress … may prohibit the carrying of lottery tickets from one state to another.”). The

insight from Champion has not eroded with passing decades. See, e.g., United States v. Wall, 92

F.3d 1444, 1451 n. 16 (61 h Cir. 1996).

Likewise, states have owned and asserted their police power over gambling. See, e.g., Bird v. State,

908 P.2d 12, 20 (Ariz. Ct. App. 1995) (“The government has the constitutional power to regulate

or prohibit gambling in general.”); Army Navy Bingo, Garrison No. 2196 v. Plowden, 314 S.E.2d

339, 340 (S.C. 1984) (“[T]he State’s power to suppress gambling is practically unrestrained.”);

State v. Thompson, 60 S.W. 1077, 1078 (Mo. 1901) (“[T]he State may, in the exercise of its police

powers, prohibit [gambling] altogether.”).

To be sure, there are problems with S. 1668 that extend beyond the principle of federalism. For

example, the bill might not effectively address DFS, as it contains a sports exception; the bill could

hamper the ability of states to offer lottery and other games on the Internet—which many are now

safely providing, to generate revenues for public needs like education, property tax reform and ad-

vanced consumer protections; and the bill does nothing to help individual states address such chal-

lenges as Internet sweepstakes, which have evolved through state sweepstakes laws.

You and I agree that the principle of federalism should be a major factor in any assessment of federal

legislation. We know that not every problem warrants a federal solution. Internet gambling is a matter

for the states.

Respectfully,

Mark Brnovich, Attorney General

Following is a

letter from MARK

BRNOVICH,

ATTORNEY

GENERAL for the

state of Arizona,

to the U.S.

Senate. It is a

concise yet

cogent and

articulate

statement for why

the federal

government

should respect

the authority of

individual states

to regulate

gambling … all