HISA legislative fix may be on the table

With a panel of the Fifth Circuit Court of Appeals having ruled the Horseracing Integrity and Safety Act unconstitutional, Sen. Mitch McConnell (R-KY) is pushing for a legislative fix in the lame duck session of Congress, according to a report.

The report, from Reuters, cited an unnamed source “with direct knowledge of the negotiations.”

Not everyone is pleased.

“Don’t make the same mistake twice,” Ed Martin, president of the Association of Racing Commissioners International, pleaded in a release. Martin’s group represents the state racing commissions that are largely sidelined by the new law.

HISA created a Horseracing Integrity and Safety Authority under the nominal control of the Federal Trade Commission. However, the language of the law restricts the FTC to what amounts to an advisory role; it has no ability to require or prohibit any action by the Authority.

That, the appeals court determined, is a fatal flaw because it impermissibly delegates quintessentially federal regulatory powers to a private entity with insufficient government oversight.

McConnell’s fix, the report said, would “provide greater federal oversight” of the Authority, and he is seeking to include it in the omnibus spending bill that would fund the government for the year to come. That bill could pass later this month.

If that were to happen, it would be reminiscent of the original law’s passage, when it was attached to other must-pass legislation in 2020. That was a mistake then, Martin said, and would be one now.

“It was a mistake to create HISA without going through Regular Order and it will be a double mistake to make changes without clearly assessing what’s working and what is not and allowing Senators and Members of the House to weigh in.   That means regular order,” Martin said.

But consensus may be elusive, especially in the short term. Several legislators have voiced concerns about the new law and how it affects their states, one having gone so far as to introduce legislation delaying the law’s implementation. McConnell, the leader of the Senate Republicans, has a great deal of power, but he also has members with a variety of issues with HISA.

“McConnell’s got a very feisty conference,” Alan Foreman said. Foreman, an attorney, works with horsemen’s groups around the country, including several in the Mid-Atlantic, and he is the CEO of the umbrella Thoroughbred Horsemen’s Association. 

“You’ve got Grassley from Iowa, and you’ve got John Kennedy from Louisiana, who have been all over McConnell about their unhappiness with HISA,” Foreman added.

Foreman’s group has not participated in lawsuits against HISA, but a larger horsemen’s organization, the Horsemen’s Benevolent and Protective Association (HBPA), has been a significant party to them.

At the Tuesday session of the 2022 Global Symposium on Racing hosted by the University of Arizona Race Track Industry Program, HISA CEO Lisa Lazarus made a call for industry unity. While fighting within the family is fine, she said, to the outside world, “[W]e need to speak in one voice,”

But the ARCI’s Martin suggested that won’t happen until there is a true effort at consensus-building in which all of the stakeholders participate.

“Only then can one make the endless and costly lawsuits go away,” Martin said. “To have one faction try to slam dunk what they think is some sort of fix is not a unifying move.”

A second lawsuit against HISA is set to be heard in the Sixth Circuit Wednesday. The racetrack safety components of the program went into effect July 1, and the medication control and anti-doping elements are slated to do so January 1.

The Fifth Circuit’s ruling, which applies only to Texas, Mississippi, and Louisiana, is expected to take effect on or about January 10.