Senate Minority Leader Mitch McConnell (R-KY) is allegedly pushing for an impending spending bill to include an updated version of a horse racing law that was recently ruled unconstitutional by a federal appeals court, Reuters reported Monday.
The U.S. Court of Appeals for the Fifth Circuit struck down the Horseracing Integrity and Safety Act (HISA) in November, reasoning that the law was unconstitutional because it gave federal power to a private body, the Horseracing Integrity and Safety Authority, without ensuring that the private entity was beholden to the Federal Trade Commission (FTC).
“For good reason, the Constitution vests federal power only in the three branches of the federal government. Congress defies this basic safeguard by vesting government power in a private entity not accountable to the people. That is what it has done in HISA,” a panel of three judges wrote in an opinion. “…We only apply, as our duty demands, the settled constitutional principle that forbids private entities from exercising unchecked government power.”
The Fifth Circuit’s decision covered two separate lawsuits against HISA, one filed by The National Horsemen’s Benevolent Association and one filed by the State of Louisiana, West Virginia, and several horse racing-related organizations.
HISA was first introduced by U.S. Reps. Paul Tonko (D-NY) and Andy Barr (R-KY) in 2015. The bill stalled for five years until McConnell announced his support in 2020. HISA was passed with bipartisan support and signed by former President Donald Trump that December after “a spate of doping scandals and racetrack fatalities,” according to the court opinion, though horse racing had been regulated by states, localities, and private organizations for centuries. The purported purpose of HISA was to create a framework for enacting nationwide rules governing racetrack safety, anti-doping, and medication control.
As the complaint filed by Louisiana Attorney General Jeff Landry and others reads, the regulatory power given to HISA by Congress was “breathtaking in scope, covering virtually all aspect of horse racing.” The complaint details how HISA was given power to adopt rules around doping, medication control, and racetrack safety, and was allowed to investigate violations of its rules by issuing and enforcing subpoenas. HISA was also reportedly allowed to investigate alleged violations and then “act as judge in its own cases and adjudicate alleged violations of its rules.”
“If that’s not enough, HISA claims power to bring civil actions in federal court in response to known or anticipated violations of its regulations. And for those it deems guilty of disobeying its commands, HISA claims disciplinary power to issue sanctions up to and including lifetime bans from horse racing, disgorgement of purses, and monetary fines and penalties,” the complaint states.
Landry, at the time, released a statement criticizing HISA as a “regulatory scheme that is, at best, half-baked and harmful to everyone in the industry it purports to exist to protect and at worst unconstitutional,” and vouched for federalism.
The Liberty Justice Center, which represented The National Horsemen’s Benevolent Association in the first lawsuit, released a statement stating that HISA would have “allow[ed] industry insiders to regulate their competitors without any meaningful federal oversight,” and would have allowed the authority to impose new fees and costs on the industry, which is comprised of “working class horsemen and women.”
According to Reuters, McConnell, who hails from the land of Churchill Downs, “played a key role in getting the law passed and will seek changes to enhance the Federal Trade Commission’s (FTC) oversight of HISA,” citing a source who “spoke directly with the lawmaker.”
Landry’s office did previously note when it filed the lawsuit that HISA was “passed in the dark of the night and tucked into the COVID relief package” in an “attempt to federalize horse racing.” Landry on Tuesday slammed the lawmaker’s alleged attempt to once again slide HISA into a larger spending package.
The Senate should not disgrace our Military and Veterans by turning the NDAA (National Defense Authorization Act) into the NCAA (National Cartel Authorization Act)
— AG Jeff Landry (@AGJeffLandry) December 6, 2022
“Bailout of the media cartel and federal takeover of horse racing have nothing to do with national defense. JCPA and HISA (which has been declared unconstitutional by the courts) should not be included in the NDAA,” Landry tweeted.
“The Senate should not disgrace our Military and Veterans by turning the NDAA (National Defense Authorization Act) into the NCAA (National Cartel Authorization Act),” he continued.
McConnell has notably criticized his Democrat colleagues for “trying to jam in unrelated items” into the NDAA.
McConnell from Senate floor on the final version of the #FY23NDAA defense programs and policy bill: "House and Senate Democrats are still obstructing efforts to close out the NDAA by trying to jam in unrelated items with no relationship whatsoever to defense." pic.twitter.com/Sf1tmfxhti
— Craig Caplan (@CraigCaplan) December 6, 2022
Breitbart News reached out to McConnell’s office, as well as the offices of Sens. John Kennedy (R-LA) and Sen. Bill Cassidy (R-LA), but did not receive a response by the time of publication.