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Editor's Note: USTA President Russell Williams has issued the following statement regarding the analysis of the Horseracing Integrity and Safety Act (HISA) by Gibson Dunn, the law firm that successfully argued for the United States Supreme Court to strike down a federal law prohibiting the states from permitting and regulating sports betting. "The United States Trotting Association has obtained legal advice that the Horseracing Integrity and Safety Act (HISA) is unconstitutional. "HISA purports to create a national, uniform program regulating medication in horse racing. Only Thoroughbreds are mentioned in the bill, but it contains language providing for Standardbreds to inevitably be swept in. A private, 'self-regulatory' corporation called the Horseracing Integrity and Safety Authority would develop and implement the program. "According to Gibson Dunn's research, the bill suffers from several serious constitutional flaws. "One is the 'non-delegation doctrine.' Congress may not grant regulatory authority to private entities, yet HISA does exactly that in numerous ways. To describe a few, the bill delegates to the Authority the power to determine the identity of racing participants to be regulated, to commence actions in federal court to enforce its regulatory activity, and to issue subpoenas and carry out searches and seizures. These are public functions historically carried out by public agencies. If this kind of thing were legal, our entire lives might now be regulated by private, 'self-regulatory' corporations. "The Gibson Dunn report states another constitutional violation is that the Due Process Clause prohibits an economically self-interested private actor from wielding regulatory power over other private parties. "The (HISA) governing body and standing committees supporting the Authority's activities would have bare majorities made up of disinterested persons. The rest would be representatives of 'equine constituencies' exerting regulatory power over other equine constituencies throughout the sport. "Moreover, the Authority's initial funding is designed to come from loans (which racing participants would have to repay), creating an incentive to act in accordance with the wishes of lenders. "The bill contains conflict of interest (COI) rules aimed at controlling some of these problems. COI policies tend to work well in business, but not so well when constitutional protections are at stake. It only prohibits present conflicts, without reference to previous or future activities. Thus, it is subject to the same influence concerns as the situation where a legislator retires from office and becomes a lobbyist. "In addition, HISA's COI only applies to equine industry involvement, entirely overlooking other competing industries, the gaming industry being a conspicuous example. "Finally, no COI rules would apply to the Authority's employees, or to the lenders on whom the Authority would initially be financially dependent. "To the objection that HISA gives unfettered regulatory authority to a private company, the answer would undoubtedly be that HISA also gives the Federal Trade Commission (FTC) a supervisory role. As with the COI rules just discussed, it is important to remember that when we enter the realm of constitutional protections, the rules become more stringent. Exalted brooding over the Authority's activities is not nearly enough. "First, the bill gives the Authority important powers that would be free from FTC oversight. Chief among these are actual law-enforcement powers and other powers 'of the nature and scope exercised by state racing commissions.' Some of the most important powers that the bill purports to award to the Authority are outside the FTC's purview. "Second, because of the sensitivity of constitutional protections, the federal courts have developed a line of authority holding that, regardless of the mention in a statute of the FTC or any other government agency, the constitutional test is whether the Authority could cause enough administrative trouble for the regulated parties that the latter would `face powerful incentives to obey.' "In HISA, agreeing to comply with the Authority's program is a precondition to eligibility to participate in racing. Thereafter, the Authority's power to issue and enforce subpoenas and perform searches and seizures, backed by sanctions from fines up to lifetime exclusion, makes it obvious that it is at the Authority level, not at the FTC level, that the rubber meets the road in this scheme. "The white paper explains that the courts could decide, based on a line of cases about private organizations being given enormous regulatory power, that the Authority is actually a public government agency. If this happened, the bill would violate both the Appointments Clause, which requires that appointments to public agencies be made only by the Executive Branch, and Article II, which holds agency members accountable by making them subject to removal by the Executive. "The drafters of HISA and its predecessors faced many problems, and predictably so. One of these was what if the states, which are already doing the things that the Authority now seeks to do, refuse to cooperate? The drafters solved this problem the simple way. HISA says, `State law enforcement authorities shall cooperate and share information with the Authority.' The constitutional problem here, known as the anticommandeering principle, is that the U.S. Supreme Court held two years ago that Congress `may not issue direct orders to the governments of the States.' Congress 'may not command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.' "The anticommandeering principle has the highest importance in our Constitution. To paraphrase the Supreme Court, it provides a structural protection of liberty by diffusing power, ensuring that voters know whom to credit or blame for a particular regulatory program (accountability), and preventing Congress from shifting the costs of regulation to the states. This principle, implicit in the constitutional structure and underscored by the Tenth Amendment's reservation of rights to the states, ensures that the states do not become "mere political subdivisions of the United States." "From a constitutional point of view, HISA stands out as a real patchwork of fixes designed to get around multiple constitutional prohibitions. "The most important of several troubling themes is the Authority's lack of accountability. We could debate how to get better performance out of our state racing commissions. But there is no question that the state commissions are answerable to the executive and, ultimately, legislative branches of their state governments. They are accountable, and if we don't like the job they are doing, we can do something about it. The Authority is not accountable. "The FTC's role is passive: it was only mentioned so there would be a government agency somewhere in the bill. It would literally take an act of Congress, as the old saying goes, to do anything about the Authority's malfeasance or wrongheadedness. Abdicating our destiny to this `self-regulatory' private entity would be a tragic step to take. "If this bill becomes law, there will certainly be litigation. As the white paper concludes, 'The constitutional concerns raised by HISA are substantial and pervasive. Those concerns embrace the structure and powers of the regulatory body at the heart of the bill and extend even to the bill's more peripheral provisions. We predict that enactment would lead to extensive litigation and the possible invalidation of the statute.'" To read the Sept. 11 story, "USTA Opposes Horseracing Integrity and Safety Act of 2020 (HISA)" click here. From the USTA Communications Department

Columbus, OH - On the same day that Senator Mitch McConnell (R-KY) introduced the Horseracing Integrity and Safety Act in the Senate, the Energy and Commerce Committee marked up the companion legislation in the U.S. House. Representative Paul Tonko (D-NY) offered an amendment in the nature of a substitute to the Horseracing Integrity Act (H.R. 1754) to mirror the bill introduced by Senator McConnell. The markup sparked fierce debate among the members of the committee. During debate Rep. Kurt Schrader (D-OR), a veterinarian and co-chair of the House Veterinary Caucus, railed against the lack of any equine medical input on a bill that purports to promote the health and welfare of horses, the lack of veterinary expertise on the Authority that the bill creates, and the lack of any basis in veterinary science for banning race-day Lasix. In response, the United States Trotting Association (USTA) issued the following statement in support of Representative Schrader's comments. "Certain Thoroughbred interests have made race-day Lasix a red herring to distract the public from the fact that Thoroughbred racing itself causes many of the deplorable, catastrophic breakdowns in the Thoroughbred breed. Race-day Lasix is the humane therapy for horses being asked to stress their pulmonary systems to the utmost on a single day. Lasix is not performance-enhancing, it is not doping, and it does not mask illegal substances. Banning Lasix before it is scientifically studied, to echo Representative Schrader, is putting the cart before the horse. As Rep. Schrader explained, this bill is not ready for prime time," said USTA President Russell Williams. From the USTA Communications Department            

 Russell Williams, vice-president of the famous nursery Hanover Shoe Farms and a director on the boards of many of harness racing's top organizations, and Charles Keller III, who carried on the tradition of his father's famous Yankeeland Farm and also continues to serve the sport on many of its top organizations' boards, have been announced as the finalists for the 2014 Stan Bergstein-Proximity Award, it has been announced by the United States Harness Writers Association (USHWA). After the various chapters of USHWA submitted nominations for the award, the highest honor USHWA bestows based on voting only by its members and given for outstanding achievement in/service to the sport, the nominees were sent to the Association's directors, who voted to winnow down the candidates to the top two. Williams and Keller will now be voted on by the entirety of USHWA during the annual Dan Patch Awards balloting honoring the year's stars, both equine and human; that balloting will be conducted in early December. Williams, the grandson of Hanover's founder Lawrence Sheppard, plays a major part in the operation of the world's leading Standardbred-producing farm, where he keeps his own small but select band of broodmares (he is the breeder of the million-dollar-winning top three-year-old colt Nuncio). He is also vice chairman of the U.S. Trotting Association, the sport's supervisory organization, and a trustee of the American Horse Council and the Harness Racing Museum. Williams is also a noted "equine philanthropist," financing the possibility of many Standardbreds being able to live out their lives with dignity, including retired Hanover broodmares. Keller, the son of noted Yankees baseball player "King Kong" Keller, took over operation of Yankeeland Farms, which his father established, in 1990 until the farm's closing in 2006. The farm bred two Hambletonian winners, Muscles Yankee (1998) and Yankee Paco (2000), and it also bred Yankee Blondie, the dam of 2009 winner Muscle Hill, along with countless other divisional champions. It has produced the outstanding sires Yankee Glide and Yankee Cruiser, and has been the cradle of four Breeders Crown winners Keller is the chairman of the executive committee of the Hambletonian Society, a trustee of the Harness Racing Museum, and a former director of the U. S. Trotting Association. The Bergstein/Proximity winner, along with the awards for the best of 2014, will be given at USHWA's annual Dan Patch Awards dinner on Sunday, February 22, 2015, at the DoubleTree by Hilton Hotel Orlando at SeaWorld; more details, including on accommodations, will be forthcoming soon. USHWA

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