HISA Update for NHBPA Board 12-6-2022

For Immediate Release –  Oklahoma City, Ok, December 7, 2022 – 

Help us help you: Tell Congress horse racing needs a strategic, legal alternative to HISA with all stakeholders at the table.

In the wake of the 5th Circuit Court of Appeals unanimously ruling the Horseracing Integrity and Safety Act and its resulting Horseracing Integrity and Safety Authority (HISA) unconstitutional, the No. 1 question we get is: What now? 

We hope you find the synopsis below helpful – including what we are doing and how YOU can assist as we work for national policy that truly makes our industry better without trampling on the Constitution or forcing tracks and horsemen out of business under HISAs crushing financial burden.

Where we stand now (legal updates at bottom):

HISA supporters are beginning to mobilize on Capitol Hill, and we are doing the same. We might not have their massive funding, but our advantage is that we are confident many more people agree with our position that HISA is fatally flawed and theres a far better and legal path forward by working with ALL stakeholders, not just those with the deepest pockets.

HISA and its allies will seek a quick fix; what they are inaccurately calling a technical correctionsbill that they will most likely try and slip into the end-of-year spending bill, better known as the Omnibus. This would follow the tactic they used to get HISA passed in the first place by sneaking it into the 2020 COVID relief bill, allowing it to pass without a single Senate committee hearing or debate.

While no text has leaked yet, we believe this quick fixeffort is likely to make the Authority constitutional by ceding a majority of its power back to the Federal Trade Commission (FTC), an agency that is wholly unfamiliar with our industry. Ceding additional powers to the FTC is not the answer. 

We believe this quick solution may receive significant pushback from Members of Congress, including from among Members who previously supported HISA and those who had no idea it was in the COVID bill. We need you to encourage and reinforce this pushback.

Heres what you can do:

Contact your U.S. Representative.

You can use this link to identify and send an email message to your Representative: https://www.house.gov/representatives/find-your-representative. Be sure to know your zip codes +4 (you can look that up here). An email template is provided below. You can also call and leave a message.

Contact your U.S. Senators.

Heres a link to find and contact your two U.S. Senators: https://www.senate.gov/senators/senators-contact.htm. You can also call and leave a message.

We encourage affiliates to consider going barn to barn on the backstretch to help people fill this out on their phone. Heres a template for an email message that can be copied:

“Recently, the 5th Circuit Court of Appeals unanimously ruled that the Horseracing Integrity & Safety Act (passed when slipped into the year-end omnibus in 2020) is unconstitutional. I agree. HISA was created with an extremely expensive quick fix and the result has been not only a trampling on the Constitution and mass confusion, but a serious threat to the existence of smaller racetracks and a likelihood of running many racehorse owners and trainers as well as the small businesses that depend on horsemen out of business. This new bureaucracys crushing costs are being passed on to tracks and horsemen with no transparency, no meaningful oversight, and no significant representation. An industry as complex and wide-ranging as ours deserves thoughtful legislation. Rushing a quick fixwill not correct the problems identified in the Circuit Courts unanimous opinion. It must be done strategically and with input from the industry as a whole. Please block any effort by HISA or its supporters for another quick fix that got us in this mess in the first place. Our horsemens representatives want to work with ALL parties for new, sensible legislation that allows our jobs-heavy industry and related agribusiness to thrive and improve, rather than to choke from ill-advised legislation snuck through by a well-financed minority. We appreciate your support.

What a Member of Congress says:

The Horse Racing Integrity and Safety Authority failed to meet its statutory deadlines and their incompetence has created widespread confusion and problems for horsemen in my home state of Texas and across the country. Decisions impacting the horseracing industry are best made at the local level, and I am glad the 5th Circuit agreed that it is an unconstitutional governing body and has taken the first step to return this power to the states.” – Rep. Lance Gooden (R-TX-05) 

Legal Updates:

Fifth Circuit Court of Appeals

On November 18, the U.S. Court of Appeals for the Fifth Circuit unanimously ruled the Horseracing Integrity and Safety Act (HISA) unconstitutional. 
HISA may seek an en banchearing in the 5th Circuit, a request that would throw out the current decision and have all judges that sit on the 5th Circuit Court of Appeals to re-hear the case. This is not a very likely outcome since it must be granted by the ruling judges and the ruling judges were unanimous in their opinion. 
The 5th Circuits ruling is expected to go into effect on January 10, 2023. 

Sixth Circuit Court of AppealsOral arguments scheduled 

The 6th Circuit Court of Appeals (Kentucky, Michigan, Ohio, Tennessee) will begin hearing its HISA case on Dec. 7. The case will address both the constitutionality of HISA, as well as its potential violation of the private non-delegation doctrine. That doctrine says that Congress may not delegate governmental powers to a private entity (such as HISA).
If the 6th Circuit were to rule the Authority constitutional, the likely next step would be an appeal to the U.S. Supreme Court to settle the dispute. 

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Edward J. DeBartolo (at that time, the owner of Balmoral, Thistledown and Louisiana Downs) built Remington Park in Oklahoma City as a $100 million showcase for Thoroughbred racing. The inaugural race meet during the fall of 1988 was an opportunity for Oklahoma Thoroughbred horsemen to race in their home state and for horsemen from throughout the region to enjoy Oklahoma’s hospitality.

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