In 2013, Rep. Joe Barton from Texas introduced a bill before the House of Representatives called The Internet Poker Freedom Act. Unlike previous bills, particularly those spearheaded by Rep. Barney Frank, this bill did not seek to regulate online poker, but rather, force the federal government to not seek to stand in the way of any such regulation.
While the bill did not garner anywhere near enough support to go forward with it, Rep. Barton did sponsor a second bill of the same name in 2015, with only minor changes being made to it, most notably appointing the federal Department of Commerce to provide oversight to the online poker industry, although it wasn‘t made clear where the power to do this would arise from.
The federal government does provide oversight on pacts between Indian tribes and the various states, but in this situation they do have a vested legal interest in the Indian reservations where these gaming facilities operate. So they have legal standing here given that these reservations are on federal land and administered federally and any power that the state has, including even entering the reservation to pursue those committing crimes on state land, is at the pleasure of the federal government.
The Department of Commerce though only has the power to regulate interstate commerce, and if the activities, the online poker, were purely within a state, then it’s even hard to imagine how they would have any say in these matters, bill or no bill.
The scope of federal legislation in the United States is confined by the U.S. Constitution, which among other things sets out the division of powers between states and the federal government, and intrastate commerce is clearly one that is completely within the domain of each individual state.
To the extent that these activities spill over into the intrastate realm though, they then become subject to being regulated by bills such as this one, or any other federal regulation, including such things as the Wire Act and the UIGEA.
At the time that both of these bills were proposed, there was no basis for federal legal intervention in online poker anyway, providing that the online gambling in question was legal, which is still the case today, so for practical purposes this bill addressed future attempts to curtail online poker, such as the proposed Restoration of the Wire Act bill or future bills which would seek to prohibit or regulate interstate online poker.
So No Real Federal Law Existed Against This To Overturn
In spite of this, many people have been confused here and have thought, wrongly in fact, that interstate gambling of a certain type required federal approval to be legal. While this is within the domain of the federal government, as they could prohibit it or regulate it, the lack of any laws or regulations applying means that there are no constraints on it.
So in other words, you do not need permission to so something that is not prohibited, unless that permission is required by law, and the lack of laws pertaining to the activity means that it is permitted by default.
This was not how the Internet Poker Freedom Act was seen by people generally though, as this was perceived to somehow permit interstate online poker where it was not permitted before.
We have interstate poker now actually, in the compact between Nevada and Delaware, and they share a poker network and this is certainly an interstate arrangement, but since there is no prevailing federal legislation, there’s nothing to stop them from doing this basically.
So we might want to ask what these bill would have added to the discussion if passed, and neither bill did pass, and the answer is that it, while left applying, would pre-empt the federal government from outright prohibition of interstate online poker, unless the Internet Poker Freedom Act was first repealed.
The Internet Poker Freedom Bill’s Unofficial Objectives
Should this bill have been passed, while it may not have had any legal force at the time, states are often more than willing to play ball with the federal government, and therefore the conditions contained in the bill would probably have been voluntarily abided by.
The goals of the bill were generally in line with what state regulatory bodies also seek to achieve, such as preventing minors from accessing the gambling, and taking measures to prevent money laundering, as well as providing a proactive means where players can self exclude themselves and problem gamblers can be helped.
So the bill may have had influence over these things and especially since this is such an online poker friendly bill and they at the very least would want to please the government and look to abide by their regulatory recommendations even though they may just be recommendations.
One of the real effects of this bill, which by all accounts was proposed not because it ever really had a chance of passing but instead to make a political statement, was to look to distinguish the game of poker as a game that the government should have a more permissive attitude toward, a viewpoint many people agree with.
The original bill even referenced United States v. DiCristina, where a federal judge decided that poker was a game of skill and since New York law made such a distinction, DiCristina’s conviction was overturned. Although this decision ended up being reversed upon appeal, the position here was that poker is a different form of gambling than, say, casino gambling, since the element of skill involved is at the very least much more substantial in poker.
So the thinking here is that one of the reasons why casino gambling is so frowned upon is that it is seeing as preying on players more, whereby with poker it is player versus player in a contest that is at least substantially skill based, and these players therefore require less legal protection so to speak.
The very fact that the bill exclusively dealt with online poker and not other forms of online gambling says a lot about the goals of it of course, and for whatever reasons a lot of people are more amicable to online poker, or less resistant to the idea at least, so it is of benefit to online poker that it be segmented like this and indeed treated differently.
So these bills had little hope than to do more than provide a platform to sound off, but sounding off is certainly a part of the process toward progress here and an important one at that.