[Kasept]

TDN: HBPA Says ‘Ramrodded’ Integrity Act Could Get Challenged As ‘Unconstitutional’
By T. D. Thornton
October 11, 2020

If the Horseracing Integrity and Safety Act (HISA) gets passed by the United States Senate and then signed into federal law, the National Horsemen’s Benevolent and Protective Association (NHBPA) could launch a legal challenge against it based on the alleged unconstitutionality of the independently overseen anti-doping, drug testing, and racetrack safety standard programs that the new federal law would create.

Leroy Gessmann, who serves as both the NHBPA president and as Arizona HBPA’s executive director, told commissioners at the Oct. 8 Arizona Racing Commission (AZRC) meeting that “this thing is being ramrodded right now by [U.S. Senate Majority Leader Mitch] McConnell…. We feel this thing is unconstitutional, just as the ban on sports betting was unconstitutional. We have the same attorneys looking into it.”

Gessmann did not speak in specifics about which aspects of the bill the NHBPA considered unconstitutional. Nor did he outline what the purported similarities were to the federal ban on sports betting that got overturned by a 2018 U.S. Supreme Court ruling.

Although previous versions of the Integrity Act have existed in the House of Representatives since 2015, the Senate version of the HISA (SB 4547) that was introduced by McConnell Sept. 9 has language that now matches the amended House version that passed with bipartisan support Sept. 29. As the majority leader, McConnell determines which bills come up for action in the Senate, and the longtime Kentucky legislator has consistently indicated he’s strongly in favor of a vote on HISA happening prior to the end of the current legislative session.

Gessmann’s comments came 22 minutes into an AZRC presentation last Thursday that detailed possible implications of the HISA on the sport’s regulation in Arizona. He was asked by the commission if he’d like to speak on the issue, and to clarify if he’d be commenting personally or as an HBPA representative.

“I’m going to speak on this topic as the National HBPA president,” Gessmann said. “Although there are a few good things in this bill, there’s a lot of concerns…. There’s been a version of this bill for six years in the House, and it’s never gone anywhere. And then when McConnell teamed up with Keeneland, Churchill, The Jockey Club, this thing all of a sudden took off.

“National HBPA is against this bill because of the Lasix issue [and] because of the formation of the Authority,” Gessmann said. “The Authority is made up of nine members, and they are appointed, they’re not elected [and] they can have nothing to do with the horse industry. They can have no experience or be involved in any way in the horse industry. [So] how [you] take people that don’t know anything about a horse and put them in charge of such an operation is beyond me.

“The other key issue [is] the expense of this is going to be a burden on the horsemen,” Gessmann continued. “Every start, you’re going to be assessed. The tracks are going to be assessed, and the state is going to be assessed to pay for this Authority and to oversee this thing on a national basis. Although we feel as horsemen the safety of the tracks are important, [there] is going to be major concerns with the safety of the racetracks, especially in Arizona.”

Gessmann did not elaborate on why Arizona, in particular, would face outsized concerns about racetrack safety.

At a later point in the discussion, Gessmann was asked how McConnell’s re-election bid factored into the outcome of the HISA bill.

“McConnell is trying to get it passed through in the ‘lame duck’ session before it ends, before his term ends,” Gessmann said. “If they don’t get it done in the lame duck session, then the bill dies, and they have to start all over.”

GovTrack, a legislative transparency organization that uses logistic regression analysis to rank the likelihood of passage of the 10,000 bills that come up annually in Congress, currently gives HR 1754 a 63% chance of being enacted.

SB 4547 is ranked at 21% chance to be enacted. The discrepancy between the two numbers no doubt reflects that the House version has already been passed by that chamber; McConnell’s considerable political clout is apparently not factored into the algorithm.

Either way, both prediction rates are astounding considering that GovTrack gave the Integrity Act only a 2% chance of being enacted when the first version of the bill debuted back in 2015.