Another State Launches Attack on the Federal PASPA: West Virginia Introduces Bill Calling for the Legalization of Sports Betting

West Virginia has joined several other states in their quest to legalize sports betting by introducing a bill that calls the federal prohibition on states from allowing the practice unconstitutional.

On Wednesday, March 1, 2017, West Virginia State Representative Shawn Fluharty introduced House Bill 2751, which seeks to legalize and regulate sports betting in the state and alleges that the federal Professional and Armature Sports Protection Act (PASPA) is unconstitutional. The Bill declares that sports betting is lawful if it complies with the Lottery Commission’s rules and licensing fees.

While Bill 2751 allows for betting on college and Olympic sports in addition to professional sports, it does not legalize sports betting on other amateur contests.

Additionally, the Bill states that “West Virginia would benefit financially from sports betting, as increased state revenues would be generated and numerous jobs would be preserved and created for state residents, as a result of sports betting activities at licensed casino gaming facilities.”

West Virginia joins six other states that have filed sports betting bills in 2017: Maryland, Michigan, New York, Pennsylvania, and South Carolina. Further, West Virginia is already a betting state, as it has casinos located at four of its racetracks.

According to West Virginia’s Attorney General, the Bill challenges “the usurpation of the federal government of state authority to regulate sports pool betting.” Therefore, Bill 2571 takes dead aim at the PASPA, declaring that Congress “unlawfully enacted” the federal prohibition on sports betting, and thus, the PASPA violated the Tenth Amendment to the U.S. Constitution.

Unlike some of the other Bills, like Pennsylvania’s, Fluharty stated, “West Virginia’s is not designed to wait for the PASPA to be repealed, declared unconstitutional or otherwise amended to allow sports betting.”

Thus, West Virginia appears to be setting up another legal challenge to the PASPA, similar to the one implemented by New Jersey, which petitioned the U.S. Supreme Court to review the Third Circuit’s decisions denying its attempt to partially repeal the PASPA’s sports betting prohibitions. New Jersey is still waiting to hear whether the Supreme Court will review the lower court’s ruling preventing the State from implementing it sports betting plan, and the justices have called upon President Trump and his administration to weigh in on the issue. However, until New Jersey prevails or the PASPA is repealed, it is unlikely that any of these state bills will go anywhere.

West Virginia was one of five states backing New Jersey’s cert petition, including Arizona, Louisiana, Mississippi, and Wisconsin. West Virginia’s Attorney General’s brief argued that the PASPA violated the Tenth Amendment by taking away the authority of states “to pass and repeal their own laws.”

Notably, the Bill came the same day that the free market think tank Competitive Enterprise Institute (CEI) released a report calling for Congress to end the “Madness around March Madness.” The report claimed that the PASPA has “failed on all accounts. It does not protect the vulnerable. It has turned millions of otherwise lawful Americans into criminals. And it has made the market more susceptible to corruption.”

CEI’s report urged Congress to scrap the PASPA in order to leave the issues of sports betting legality within the discretion of the individual states. The report continued, there is merit in “exposing billions of dollars in economic activity to the sunshine of legitimacy.” CEI characterizes the PASPA’s gambling prohibitions as “a form of social engineering that seeks to stamp out a certain behavior.” However, PASPA has only served to “undermine state sovereignty. . . and exacerbate any social ills that might arise from gambling by driving the activity underground.”

Bottom line, “[l]ike any other form of gambling, sports betting can be regulated and taxed, but first the law must treat consumers like adults. . . [and] by legalizing the activity, states can institute safeguards to protect consumers and the vulnerable, and sports authorities can have access to the information that will help them spot and deal with corruption.”

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