In the wake of an intensely polarizing presidential election, there’s comfort in knowing that about half of the nation, regardless of race, gender or political affiliation are uniting this Sunday for the ritual viewing of the Super Bowl. Over cocktail weenies and beer, from sea to shining sea, Americans will gather to watch the Atlanta Falcons battle the New England Patriots for the National Football League championship. In addition to our love of the game, snack foods, and iconic commercials, many of us will bond over another great American tradition, too: breaking the law.
As many as half of all Super Bowl viewers will make some kind of a wager on the outcome of the game, according to estimates and polling data. But the vast majority of these gamblers are blissfully unaware that, unless they are placing their bet with a licensed bookmaker in Nevada, they are violating federal statute. This is because of the somewhat obscure Professional and Amateur Sports Protection Act of 1992 – a prohibition on sports gambling designed, according to its proponents, to protect the integrity of the game. But when millions of Americans, from the janitor at your office building to the president of the United States, openly admit to breaking the law – and with little or few adverse effects – maybe it’s time to reconsider it.
The question of the morality of gambling regulation has been settled. Every state, apart from Hawaii, has some form of legalized gambling, be it state-sponsored lotteries or church bingo. It defies logic for the federal government to step in and, based on morality, arbitrarily ban one type of gambling while it permits another. It is inconsistent, hypocritical and, in the end, unfair to those who prefer one type of gambling over another.
Such a prohibition, levied at the federal level, is also arguably unconstitutional. Matters of legalizing, regulating or prohibiting gambling have traditionally been left to state legislatures. The Tenth Amendment to the Constitution states that powers not delegated to the feds are reserved to the states and individuals. Relatedly, the U.S. Supreme Court of the U.S. has ruled that the Constitution protects states from “commandeering.” That is, while the Constitution may imbue the federal government with the power to directly regulate interstate commerce and even to require or prohibit certain acts, it “lacks the power directly to compel the States to require or prohibit those acts.” In fact, these two principles, the Tenth Amendment and anti-commandeering doctrine, are at the heart of a New Jersey lawsuit against the federal anti-gambling law currently awaiting a hearing by the Supreme Court.
So, how did we even end up with the federal ban? Back in the 1990s as a rash of states considered legalizing sports betting – with even Donald J. Trump in support of the idea – commissioners from the nation’s sports leagues pushed Congress to create a nationwide ban. They argued that allowing states to sanction this sort of gambling activity would harm the perception of game integrity. To impose the new restrictions, they found their champion in Sen. Bill Bradley, D-N.J., a former professional basketball player who did a stint with the New York Knicks. Bradley introduced the bill that would become the Professional and Amateur Sports Protection Act, along with a number of other members of Congress who saw sports gambling as “a national problem” causing “moral erosion [that] cannot be limited geographically,” and with harms that are felt “beyond the borders of those States that sanction it.”
Since the passage of the law, however, America’s lust for sports gambling hasn’t abated. “Not since prohibition have Americans so readily engaged in an illegal activity as they do with sports betting today,” Washington Post columnist Andrew Beyer wrote in 1991 when the illegal sports betting market was estimated to be around $40 billion a year. Now, this black market is estimated at upwards of $400 billion. Even at the low end of the estimates – say, $100 billion – illegal gambling dwarfs the legal sports wagering market, which is $4.2 billion a year. States are understandably displeased that an outdated federal statute has prevented them from reaping taxable revenue.
With all those flaws, the only justification for a sports gambling ban must be that the games are safer from corruption – right? Maybe not. Match-fixing in the U.S. is rare thanks, in part, to high salaries and league rules that prohibit athletes and officials from gambling, divulging insider information or altering the game in exchange for favors. Penalties for violating these rules range from the loss of multimillion dollar contracts for professionals to the loss of scholarships, eligibility to play and jeopardizing the future careers – both academic and athletic – for amateurs. Legalizing the sports gambling market would act merely to increase transparency, where legal bets could be tracked, and the chances that attempts to manipulate the market would be more easily detected.
Furthermore, creating a market for sports bettors to place their wagers legally would shrink the size and influence of the black market, as happened with illegal “numbers games” rackets (a black market game where bettors tried to guess a set of numbers that would be selected randomly by those running the racket) when states sanctioned lotteries.
As with alcohol prohibition, this “noble” experiment has run its course and it has failed, on every account, to do what it was intended to do. Rather than protecting the integrity of sports (which is arguably not something that elected officials should be attending to, anyway), it has created a robust black market, stripped states of hundreds of millions in lost tax revenue and created a nation of unwitting criminals.
Regardless of whether or not the Supreme Court strikes the law down as unconstitutional, it is long-past time that Congress take action to rid our nation of this useless and counterproductive prohibition and allow the states and the people decide whether or not to take a gamble on sports betting.
Originally posted to U.S. News & World Report.