The week before Christmas

Op-ed by Martin Cothran, senior policy analyst for The Family Foundation (January 9, 2020)

The week before Christmas, Kentucky’s Interim Joint Committee on Licensing and Occupations decided to give itself a present. Committee members, almost all of whom favor sports wagering legislation which had been pre-filed for this 2020 General Assembly session, were facing a problem: Kentucky’s Constitution only allows for three kinds of gambling: pari-mutuel horse betting, charitable gaming, and the Lottery (a state-run lottery).

So, worrying that its unconstitutionality might kill their sports wagering bill and spoil their party, they made a list and checked it twice and realized that what they needed was someone to appear before their committee (and the cameras) who could pass as a constitutional expert who would tell them that, in spite of what courts and several attorneys general have found, sports wagering is, in fact, constitutional.

So, they searched around the country and found a pro-gambling lawyer in Florida who would tell them what they wanted to hear. Daniel Wallach, a gambling industry attorney who never saw a state constitution he didn’t think allowed gambling, was coming to town. Wallach testified before the Committee on Dec. 16.

Although news reports termed Wallach an “expert,” he in fact had no special expertise in relation to Kentucky’s Constitution. He misidentified the year in which Kentucky’s current Constitution was debated and appeared to be unfamiliar with Kentucky Constitutional case law. As it turns out, his expertise seemed mainly to consist of speaking at gambling conferences and travelling around the country questioning long-held Constitutional interpretations of gambling laws.

Wallach is like the expert medical witness in a criminal trial who always testifies that the defendant is insane – or the termite inspector who is guaranteed never to find termites. So let’s just say his testimony was not a big surprise. Still, Committee members reacted to it with all the excitement of little boys who just got their first bicycles.

“That’s the best testimony by a lawyer in front of this committee that I think I’ve ever heard,” Senate Majority Leader Damon Thayer told Wallach. “I think you’ve just provided this committee with a sort of mic-drop moment.”

What Thayer might have thought of a real Constitutional expert who could hold on to his mic is uncertain, since the committee didn’t bother to invite one.

 Wallach argued that Kentucky’s Constitution does not, in fact, prohibit sports wagering because all it prohibits is a “lottery,” and sports wagering is not a lottery.

The first problem with this argument is that, if it’s true, it isn’t just sports wagering that is legal, but all forms of casino gambling, since they are not (according to his definition) lotteries. In other words, if Wallach is right, the assumption behind every attempt to amend Kentucky’s Constitution over the last twenty-five years was simply mistaken. Millions of dollars were spent for high-priced lobbyists and expensive advertisements, and all the gambling industry ever got in their stockings was a lump of coal.

And all this time, all they had to do is to go track down a pro-gambling lawyer from Halandale Beach and put him up for a couple of nights at the Capitol Plaza Hotel.

Stinks, doesn’t it?

But it isn’t just about everyone on both sides of the gambling debate who were deceived for all these years, but the real, live, authentic Kentucky lawyers – the kind who never seem to get invited to Licensing and Occupations Committee meetings.

In 1993, when two pro-gambling state lawmakers asked Kentucky Attorney General Chris Gorman to render an AG opinion on whether the Kentucky Constitution would need to be amended in order to allow casino gambling, Gorman responded that it would. “We find,” said the AG’s office, “casino gambling to constitute a lottery under the constitution of this state.” And because of the nature of sports wagering, the same would have to go for it too. 

Gorman pointed out that the term “lottery,” historically and in constitutional interpretation, was a generic term for gambling in general. Then in 1999, the AG’s office under Ben Chandler issued another ruling with similar implications.

In short, lawmakers on Kentucky’s Licensing and Occupations Committee who support sports wagering need to consider whether the gift they gave to themselves might need to be returned, and whether the so-called “expert” who delivered it to them was really just a bad Santa.

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