The Day Congress Outlawed Sports Betting and Violated the U.S. Constitution

After losing the Republican presidential nomination to George W. Bush, Arizona Sen. John McCain took up a new crusade – sports betting. The media reported McCain's crusade as if this were the first time the federal government confronted "evil gambling and organized crime." In fact, about once a decade, some senator or representative trying to make a name for himself pushes for federal laws along these lines.

In the 1930s, it was Sen. Royal S. Copeland of New York who introduced the federal Anti-Racketeering Act. In the early 1950s, Sen. Estes Kefauver held the first nationally televised hearings, grilling witnesses like "Bugsy's Baby," Virginia Hill, about the connection between gambling and the mob. The hearings helped Kefauver get the Democratic nomination for vice president in 1956, and produced new federal laws, including a tax on wagers, a ban on gambling ships, and the main restriction on gambling devices, the Johnson Act.

Attorney General Robert Kennedy's "war on crime" in the early 1960s led to the Wire Act, the major threat facing Internet gambling today, and more federal laws, including the new crimes of shipping wagering paraphernalia across state lines and traveling across a state line to promote illegal gambling.

The Nixon Administration's contributions were the Organized Crime Control Act of 1970, making violation of a state anti-gambling law a federal crime, and adding gambling to the list of crimes that would authorize a wiretap.

But the most amazing attempt by Congress to control "evil gambling" was Sen. Bill Bradley's Professional and Amateur Sports Protection Act. This 1992 law is so comprehensive that there is really not much left for Sen. McCain to attack. The Nevada sportsbooks were exempted because they were operating legally under Nevada law. So, the debate is only whether Congress should, as the current bill states, "prohibit high school and college sports gambling in all states, including states where such gambling was permitted prior to 1991."

In the 1970s, the Delaware State Lottery starting taking bets on professional football games. The National Football League sued – and lost! The NFL claimed that people might think it was endorsing gambling. More importantly, sports teams make a lot of money from their trade names. The Lottery got around both of those problems by having people bet on "Los Angeles" rather than on the "Rams."

The Oregon State Lottery followed, and expanded the bets to include games of the National Basketball Association. That was too much for Sen. Bradley, who had been a star with basketball's New York Knicks.

Sen. Bradley's act is short and to the point. It makes it unlawful for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly … on one or more competitive games in which amateur or professional athletes participate … or on one or more performances of such athletes in such games." States with existing sports betting were grandfathered in.

This federal law was designed to prevent any new sports betting of any kind, with one exception. The casinos in New Jersey had enough political clout to get Congress to give them one year to get sports betting legalized in that state. But, Sen. Bradley, who also was from New Jersey, had even greater political power. He single-handedly prevented the issue of legalizing sports betting from even being put on the ballot, so the citizens of New Jersey never got to vote on the question.

The Bradley Act is a strange and even frightening federal law, for anyone who knows American history. The federal government had never before tried to regulate or prohibit gambling that took place entirely within a single state. In fact, it does not have the power to do so.

Following the American Revolution, the states decided to create a federal government with limited powers. Congress and the president may think they can do anything they want, but they only have powers given them by the U.S. Constitution.

I can find only two provisions of the Constitution that might apply. The first is Congress' power to regulate interstate commerce. But, we are talking about purely intrastate activities. The Bradley Act prevents a state legislature from passing a state law that would allow a citizen of that state to make a legal sports bet with another citizen of that same state.

The other possible Constitutional provision is Congress' power to protect trade names. But the Bradley Act allowed licensed sportsbooks in Nevada to continue to use actual team names, as they had been doing for decades.

Never before did an act of Congress so blatantly discriminate among the states.

Never before did an act of Congress so restrict the right of states to raise revenue.

And never before did an act of Congress give private organizations the power to enforce a federal law against a state, for the most frightening provision of the Bradley Act states, "A civil action to enjoin a state from legalizing sports betting may be commenced … by the Attorney General of the United States, or by a professional sports organization or amateur sports organization whose competitive game is alleged to be the basis of the wager."

The U.S. Supreme Court has made it clear that a state cannot be sued without its consent. If a state cannot be sued by an Indian tribe or its own state employees, what chance is there that the Court would allow a suit by an amateur sports organization?

Professor Rose can be reached at his website: www.GamblingAndTheLaw.com.