Life, liberty and the right to play online poker

Morality, international law and the odds of drawing an inside straight -- Congress revisits the ever-popular topic of Internet gambling.

Published November 15, 2007 9:57PM (EST)

"There are 28 million self-identified poker players who want to play and bet online. They are adults who as American citizens have a right to play poker, a game of skill, in the privacy of their own homes on their own computers. There is a limit to how much government can interfere with our fellow citizens' rights to participate in a recreational activity of their choice."

So testified Rep. Shelly Berkley, D-Nev., at a House Judiciary Committee hearing looking into online gambling law enforcement on Thursday. As congressional hearings go, this one gets a five-star rating from How the World Works. There were professional poker players referencing John Locke and John Stuart Mill, Tennessee legislators getting medieval on the Family Research Council, and a discussion of the odds against James Bond drawing an inside straight in "Casino Royale." All this against a backdrop featuring a mighty clash between states' rights and international treaty obligations.

The context is complicated. In October 2006, Senate Majority Leader Bill Frist successfully slipped the Unlawful Internet Gambling Enforcement Act into a port security bill. The UIGEA, summarizes Wikipedia, prohibits "the transfer of funds from a financial institution to an Internet gambling site, with the notable exceptions of fantasy sports, online lotteries, and horse/harness racing."

Not only did the passage of this act annoy millions of American online poker players and play havoc with the revenue of Internet gaming companies, but according to multiple rulings by the World Trade Organization, ongoing efforts by U.S. authorities to criminally prosecute individuals connected with offshore, or "remote," Internet gambling directly contravenes U.S. commitments under international law.

The question at hand for the Democratically controlled Congress is whether to roll back the ban on Internet gambling, further strengthen it, carve out some exceptions to it, or just study the matter further. Rep. Berkley testified in favor of funding a study to find out just how detrimental to society Internet gambling really is. Rep. Robert Wexler, D-Fla., who sits on the House Judiciary Committee, has proposed a bill that would allow so-called games of skill, including poker, backgammon and mah-jongg, to be exempt from the ban.

For Annie Duke, a successful female poker player, mother of four, Columbia grad, and ardent defender of the right to play online poker, the issue was a clear case of government infringement of civil liberties. Duke believes that Congress "strayed significantly" from the founding principles of the U.S., as articulated by James Madison and Thomas Jefferson in the tradition of Locke and Mill, when it passed the UIGEA. She boldly suggested that Ronald "I believe in a government that protects us from each other. I don't believe in a government that protects us from ourselves" Reagan would have disapproved.

Duke even managed to tie in the subprime mortgage scandal, which How the World Works found especially titillating:

The issue for me is that people make bad decisions all the time that create bankruptcy and problems in their family. For example, accepting a sub-prime zero percent down mortgage has created a lot of bankruptcies recently. Online shopping or shopping in real life has created a lot of bankruptcies. If we choose to ban every activity that creates financial hardship in a family, we are going to be banning basically every activity. If we choose to ban anything that hurts a family, we are going to be banning McDonald's, for example, because many fathers die prematurely from eating fatty foods and leave their children with no means to support themselves, and you know, a lot of ruining of lives occur because people are eating too many McDonald's' hamburgers. I would hope that we aren't going to ban that either.

Her counterparts, who included Tom McClusky, the vice president of governmental affairs for the Family Research Council, the arch-conservative advocacy organization founded by Christian crusader James Dobson, split their time between defining the issue as one either of morality or states' rights, or both. Rep. Robert W. Goodlatte, R-Va., testified that the "negative consequences" of online gambling "can be more detrimental to the families and communities of addictive gamblers than if a bricks-and-mortar casino was built right next door or in your community." It is "the crack cocaine of the Internet," said McClusky, a menace to children and a playground for organized crime. From this stance, the U.S. is not thumbing its nose at international law when it refuses to accept the decision of the WTO, but is instead taking a principled stand on an issue of fundamental morality.

But Joseph Weiler, a law professor at New York University, observed that the WTO judges, in theory, accepted the principle that a country could reject its WTO obligations on the basis of morality. But by carving out exceptions to the ban on illegal online gambling in the United States -- most notably horse racing -- the U.S. undermined its own position. And the consequences, Weiler said, could be dangerous. If the U.S., the prime motivating force in originally setting up the WTO, and a country not at all afraid to pursue judgments against other nations when it feels they are not living up to their treaty obligations, takes its ball and goes home, what's going to happen if China, or Brazil, or India, follow suit?. As committee chair John Conyers, D-Mich., noted near the conclusion of the hearing, the flouting of international law on the topic of Internet gambling comes in the context of a world environment in which a growing number of critics believe "our government has been in reckless disregard of many of our treaties, conventions, protocols, ranging from anti-nuclear to environmental to torture."

Every participant in this hearing was well armed and articulate. Panel members and committee members jousted directly with each other on issues of law and morality. But the unquestionable highlight, for How the World Works, came when freshman congressman Steve Cohen, D-Tenn., engaged the Family Research Council's McClusky on just where the line should be drawn. If one of the reasons to support a ban on Internet gambling was the technical impossibility of preventing children from participating, then why allow online access to lotteries, or to horse-race betting?

Better yet, why allow horse racing at all?

COHEN: Do you think that horse racing and dog racing and lotteries should be legal in the United States?

MCCLUSKY: Are you asking me?

COHEN: Yes, you personally.

MCCLUSKY: The Family Research Council does believe that such things should be illegal.

COHEN: So it is really not the Internet you are against. It is gambling in general. Is that right?

MCCLUSKY: Yes, that would be true, or at least unrestricted gambling such as we have with the Internet or other.

COHEN: But the lottery is restricted. You can't play if you are a child. Same thing with horse racing. But you are against that, are you not?


COHEN: So restricted or unrestricted, you are against it?


COHEN: Is there any fun that you are for?

McClusky subsequently tried to defuse the question by joking that he was in favor of the hearing itself, and that seemed like "fun," but the damage was done. For years, groups like the Family Research Council have been setting the agenda in Washington. But on Thursday a congressman in the majority party mocked their anti-fun agenda. Steve Cohen, he's our man.

(As a bonus, here's Annie Duke's opening statement before the House Judiciary Committee.)

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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