Of the many attempts by New Jersey officials to wangle a do-over of the state’s failure 20 years ago to legalize sports betting, Senator Raymond Lesniak’s latest end-around—S2250, overwhelmingly passed by the Senate and Assembly in June, only to be vetoed this week by Gov. Chris Christie—may have been too clever for its own good. Certainly it was discomforting for a governor who thinks he might want to run for president in two years.
Instead of authorizing sports betting in violation of the federal ban on the activity codified in the U.S. Professional and Amateur Sports Protection Act (PASPA), a battle that ended in June when the U.S. Supreme Court refused to hear New Jersey’s challenge to PASPA’s constitutionality, Lesniak’s solution, crafted in May, a month before anyone knew what the high court would do, was a bill repealing the state’s own sports betting ban, the one the Legislature did not repeal back in 1992-93 within the year-long window PASPA provided to any state wishing to legalize.
Sound complicated? Well, it is, a little. It’s not uninteresting, though.
The issue before the Circuit judges was how to interpret PASPA in light of the 10th Amendment to the Constitution (one of the five Lesniak has trotted out over the years, along with the “Commerce Clause” and the “Equal Protections Clause,” in his anti-PASPA crusade).
Ultimately, New Jersey would come away empty-handed. The judges would uphold PASPA. But in doing so they took up Fishman’s point, stating in their majority decision that they do “not read PASPA to prohibit New Jersey from repealing its ban on sports wagering”.
Out of that apparent loophole squirmed S2250.
Passed just three days after the Supreme Court declined to hear the state’s appeal of the 3rd Circuit’s ruling, it declared that “All prohibitions … against wagering on the results of any professional, college, or amateur sport or athletic event, are partially repealed to the extent they would apply to such wagering at casinos or gambling houses in Atlantic City or at current running and harness horse racetracks in this State.”
So New Jersey wouldn’t be authorizing sports betting. It would no longer ban it either. It would be as Fishman suggested, and it would free the casinos and the tracks to run bookmaking operations if they choose and as they saw fit. The state simply would look the other way.
It’s straightforward enough. Or is it? Clearly, the sports books would not be required to obtain licensing for their operations and/or their employees, since obviously none would be available. No background checks, no regulatory probity, no rules other than those set by management. No tax obligation either, taxation implying official recognition and therefore approbation. The bill, all three paragraphs of it, doesn’t say.
“An unprecedented move” was how Christopher Soriano, chairman of the Casino Law Section of the N.J. State Bar Association, saw it. “No other state has ever tried this.” He said, “We haven’t had this interesting of a cutting-edge legal issue in the casino industry for years.”
Christie acknowledged it, too, as “novel,” he also described it as “rushed,” and it was more than he said he could countenance.
Yet, it doesn’t sound like the game is over either, more like the sides have retreated to their respective locker rooms, and the one behind in the score is huddling on a new plan for marching down the field in the second half.
Christie, for one, has said the Circuit Court “may not have foreclosed all legal avenues for permitting sports wagering within the state,” but the state needs to “determine if a different approach would comply with federal law”.
It’s been reported in the meantime that Ted Olsen, the famed attorney who won the 2000 Supreme Court case in Bush v. Gore and wrote the brief for New Jersey’s appeal, might return to assist him with exploring alternatives the governor termed “legally sound”.