Witness List Released for Senate Committee on Indian Affairs Hearing
On Thursday, the Senate Committee on Indian Affairs will hold an oversight hearing entitled, “The U.S. Department of Justice Opinion on Internet Gaming: What’s at Stake for Tribes?” The witness list includes two names that should ring a bell in the online poker world: gambling law expert I. Nelson Rose and Poker Players Alliance(PPA) Board Member and Litigation Support Director Patrick SkallagrimFleming (pictured). You can view the full witness list by clicking here.
PocketFives caught up with Fleming to talk about his prepared testimony and his views on the recent DOJ statement that the Wire Act only applies to sports betting.
PocketFives: Congratulations on being selected to testify in front of the Senate committee on Thursday. How did this come to pass?
Patrick Fleming: I was recently asked to publish a short article on the DOJ’s revision of its stance on the Wire Act. From what I understand, the committee contacted the PPA and said they wanted someone to speak about it. They had seen that I published an article about it and wanted me to testify.
PocketFives: What went through your mind when you heard you’d be testifying?
Patrick Fleming: I was a little surprised. Usually, these DC things go to public faces like PPA Chairman and former Senator Alfonse D’Amato, but I’m happy to do it and I’m honored.
PocketFives: What can you tell us about the core of your testimony?
Patrick Fleming: The change in the DOJ’s interpretation of the Wire Act is like the barn doors being flung open; the only question is what animals will run out. We have 50 state possibilities with respect to everything other than sports wagering.
The key question is where are we right now? We have the vast majority of states – 41 – that don’t have a law in place addressing internet gaming. When the remaining states do address the internet, what are they going to do? We’ve seen all sorts of different proposals. The biggest question is whether it’ll be 50 different state proposals or whether the Federal Government will step in.
PocketFives: What’s your sentiment on whether we’ll see a Federal regulatory scheme or state-by-state online poker?
Patrick Fleming: I’m guardedly hopeful for the passage of Federal regulation. The DOJ’s change is sort of the “burr under the saddle” and will hopefully get this Congress to take up the issue. There is certainly an incentive for Congress to act at this point in this time.
PocketFives: We’ve heard critics of the DOJ’s Wire Act clarification say that online poker might not be permitted under the Wire Act because the clarification did not directly address it. Respond to those critics.
Patrick Fleming: They wouldn’t be taking the DOJ at its word. The DOJ’s word in their letter is that the Wire Act is limited to wagers on sporting events. If you’re plunking down money to play online poker, you’re outside of the Wire Act.
PocketFives: What testimony have you seen from the other witnesses invited to Thursday’s hearing?
Patrick Fleming: I’m not aware of anyone who is taking a different angle than I am, but I haven’t seen everyone’s testimony. Professor Rose is another person scheduled to speak, and his published articles have the same analysis as my testimony.
PocketFives: CardPlayer published an article on Tuesday saying that Black Friday defendants Chad Elie and John Campos are seeking to have their Illegal Gambling Business Act (IGBA) and Unlawful Internet Gambling Enforcement Act (UIGEA) charges dismissed due to the Wire Act clarification. What do you think their chances are?
Patrick Fleming: If Elie and Campos were to be convicted, then it has to be based on a valid state law. What’s going on here is that the UIGEA and IGBA don’t just require a violation of a state law, they also have their own preliminary requirements.
Especially with respect to IGBA, it’s a question of whether poker is included in what IGBA covers. There’s a list of games in IGBA – and poker is not one of them – which is designed to limit the scope of the law. In the UIGEA, it says the law only applies to games subject to chance.
The change with the Wire Act doesn’t directly change what happened on Black Friday, though. There were no Wire Act violations on Black Friday. The IGBA and UIGEA counts were based on violating New York state law and other state laws. What’s being argued is that there are preliminary requirements for both laws.
PocketFives: What do you foresee happening if state-by-state online poker becomes a reality?
Patrick Fleming: We want to end up with a competitive interstate market with strong consumer protections. The interstate market is the key. If we can get a good Federal law that creates that interstate market, we should shoot for that first. If we can’t get that Federal law, then we should go back to the states and educate them on the importance of liquidity and state compacts and start to build that state by state. That’s a process that could take some time.
PocketFives: Do you believe that interstate online poker is permitted following the DOJ’s Wire Act interpretation?
Patrick Fleming: Yes. The distinction would have to be that online poker is legal in both jurisdictions. Some jurisdictions like Washington State have made it illegal, but there’s nothing that prevents states from having compacts that allow for interstate play.
