A BAD thing done a BAD way

OPINION BY Martin Cothran, Senior Policy Analyst

When Sports Wagering legislation was introduced in early January, the odds were said to be good that it would gain the approval of the state legislators. In fact, for almost every session for the past 25 years, supporters of expanded gambling have talked big about their prospects, only to end up empty-handed.

This year, the same fanfare greeted HB 137. But as soon as it was introduced, the Foundation started to point out problems with the legislation.

The first problem was that HB 137 was what is called a “statutory bill,” which just means that it simply changes the existing law statutes. Why is that a problem? Only three kinds of gambling are allowed  under Kentucky’s Constitution, pari-mutuel horse racing, charitable gaming, and the Kentucky Lottery, none of which include sports wagering.

In other words, if you want to allow sports wagering, you’re going to have to change the Constitution. A constitutional amendment requires 60 percent of the votes in both chambers of the General Assembly, and the ratification of Kentucky voters. It’s a higher bar you have to jump.

Bill sponsors clearly knew this, which is why, on Dec. 16, several weeks before the beginning of the legislative session, the Licensing and Occupations Committee heard Daniel Wallach, an attorney from Florida, who told the committee he had reviewed the discussion transcripts of Kentucky’s 1890 constitutional convention and discovered that they hadn’t intended to prohibit anything but lotteries. Sports wagering was not a lottery; therefore, it wasn’t constitutionally prohibited.

Wallach argued that an amendment had been proposed to ban all forms of gambling and it had been rejected, clearly indicating that the state’s framers had not intended to prohibit anything but lotteries.

The committee members, eager to hear what they wanted to hear, declared the issue settled. They didn’t need a constitutional amendment.

Of course, that’s news to the courts that have been deciding cases on the basis of a broad restriction on expanded gambling for a hundred years, as well as a number of attorneys general, who had documented the courts’ past findings.

On KET’s “Kentucky Tonight” and then again at the Lexington Forum, I debated this issue with the bill sponsor, who pointed to the Florida lawyer’s testimony that no amendment was needed. But unlike the members of the committee who called Wallach to support their position, I had actually read the transcripts he referred to.

I pointed out that what the Florida attorney didn’t mention was that the term “lotteries” at the time meant any form of gambling involving chance, and that in the very same transcript Wallach had quoted were the comments of one of the delegates saying that he was against the amendment, not because he opposed its purpose, but because he thought the draft of the Constitution they had before them already prohibited other forms of gambling. How many other delegates voted it down for the same reason?

Besides, if Wallach is right, it isn’t just sports wagering that is legal, but basically all forms of casino gambling. The court decisions going back a hundred years, several attorney general opinions, and the legislative debates of the past 25 years—all of these had been in vain. We had been wasting all those arguments for all those years because we hadn’t thought to consult an attorney from Halandale Beach, Florida who wasn’t even qualified to practice law at your local county courthouse.

Unconstitutionally allowing sports wagering will provide one more temptation to Kentucky’s underclass to squander the milk money on games designed to take their money. We already let them do it by buying Lottery tickets, which they can get at any gas station. Now they will be able to lose money even more easily by betting on the UK-UofL game on their smart phones.

Even if it was a constitutional amendment, it would still be bad public policy. But in HB 137, you have a bill that proposes to do a bad thing in a bad way.

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