The GOP's Vision of a 'Family-Friendly Internet' Leaves No Room for Poker

As Lucy Steigerwald mentioned yesterday, the 2012 Republican platform includes a couple of lines about gambling:

Millions of Americans suffer from problem or pathological gambling that can destroy families. We support the prohibition of gambling over the Internet and call for reversal of the Justice Department's decision distorting the formerly accepted meaning of the Wire Act that could open the door to Internet betting. 

The implicit argument here is what I've called the addict's veto: Because some people may overindulge in activity X, no one should be allowed to do it. Both Republicans and Democrats find that logic attractive with respect to certain sources of pleasure, e.g., junk food (Democrats), pornography (Republicans), alcohol (Democrats), and illegal drugs (both). As far as I can tell, there is no rhyme or reason to the targets favored by each party; it is simply a matter of culturally and historically contingent tastes.

In this case, the desire to ban online gambling not only violates the Republicans' avowed commitment to small, minimally intrusive government (yeah, I know); it leads the party to endorse a strategy that undermines the rule of law and the separation of powers by asking the executive branch to rewrite a statute so it better comports with the GOP's paternalistic agenda. As U.S. District Judge Jack Weinstein noted in his recent decision holding that poker is not covered by the Illegal Gambling Business Act, the Wire Act "applies only to wagering on sporting events." The relevant section says (emphasis added):

Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.

In 2002 the U.S. Court of Appeals for the 5th Circuit, the highest court that has addressed the issue, held that the Wire Act is limited to sports betting. The appeals court deemed the scope of the law so clear that it did not even bother to discuss the question, simply stating, "We agree with the district court's statutory interpretation, its reading of the relevant case law, its summary of the relevant legislative history, and its conclusion." As the GOP platform says, the Justice Department for years nevertheless insisted that the Wire Act banned all forms of online gambling. But that interpretation was highly implausible, as the department's Office of Legal Counsel explained in a September 2011 memo repudiating it. Although the memo may have been motivated mainly by a desire to clear the way for online, interstate sales of state lottery tickets, it is laughable to suggest that the DOJ is "distorting" the statute by deferring to its plain language.

The GOP's gambling plank, by the way, is part of a section called "Making the Internet Family-Friendly," which includes this sentence: "The Internet must be made safe for children." You might call this the child's veto (or, more accurately, the parent's veto): If something is inappropriate for children, no one should be able to see it. The Supreme Court has decisively rejected that argument, which is also hard to reconcile with the GOP's insistence that "there should be no regulation of political speech on the Internet." What about political speech that is not "family-friendly"? For example: The Republican Party says "the Internet must be made safe for children." Fuck that.

Addendum: The Republican platform, which called for "legislation prohibiting gambling over the Internet" in 2000 and 2004, switched in 2008 to the statement, "We support the law prohibiting gambling over the Internet." Which law was that? Presumably the platform writers had in mind the Unlawful Internet Gambling Enforcement Act of 2006, which did not in fact prohibit online gambling; it merely created new offenses tied to transactions involving forms of gambling that were already illegal. Perhaps realizing their error, Republicans this time around have switched to a more ambiguous formulation: "We support the prohibition of gambling over the Internet"—a prohibition that does not currently exist, unless you buy the GOP's absurdly broad reading of the Wire Act.