HISA fix added to omnibus spending package

Legislation that will fund the United States government for the rest of the fiscal year may also salvage the constitutionality of the Horseracing Integrity and Safety Act (HISA). That’s the hope of its sponsors, anyway.

The so-called “omnibus” spending package will ensure continued federal government operations through the fiscal year, which concludes September 30, 2023, at a cost of $1.7 trillion. It has passed both houses of Congress and now heads to President Joe Biden, who has said he will sign it.

The package includes language designed to inoculate HISA, which in November was ruled by the U.S. Fifth Circuit Court of Appeals to be an unconstitutional delegation of federal power to a private entity without sufficient governmental oversight.

The Horseracing Integrity and Safety Authority, the private entity created by HISA, is under the auspices of the Federal Trade Commission. But language in the original legislation severely limited the FTC’s oversight, rendering it little more than a rubber stamp.

While the Fifth Circuit’s ruling covers only states that were parties to the lawsuit, along with Texas, Mississippi, and Louisiana, the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee, heard oral arguments on a similar case December 7.

Some legal analysts expected that HISA would ultimately be thrown out because of the non-delegation issue, and the language in the omnibus bill, which was inserted by Sen. Mitch McConnell (R-KY), is an attempt to overcome that.

The new language specifically permits the FTC to “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate.”

The inclusion of the fix brought both cheers and condemnation.

HISA itself issued a statement, reading in part, ““We are grateful to Congress for their ongoing, bi-partisan efforts to affirm their support for HISA in order to advance safety and integrity in Thoroughbred racing.”

“On behalf of NTRA members, which include broad representation of every aspect of the Thoroughbred industry, we welcome the successful bipartisan efforts of Congress to reaffirm Congressional support for HISA’s mission,” said National Thoroughbred Racing Association President and CEO Tom Rooney. “HISA is critical to our sport and we look forward to working collaboratively with every industry constituency to continue to support the essential role of HISA going forward.”

James Gagliano, president and COO of The Jockey Club, added, ““The Jockey Club is extremely appreciative of the efforts Congress is making in support of the Horseracing Integrity and Safety Act. The Jockey Club has supported nationwide, uniform rules and regulations for Thoroughbred racing for decades through numerous initiatives.”

And several trainers, including Mark Casse, Christophe Clement, Shug McGaughey, Kenny McPeek, Graham Motion, Todd Pletcher, Eric Reed, Dale Romans, John Sadler, Jonathan Thomas, and Nick Zito, added, “As trainers who work and compete across our country, we applaud Congress for their bipartisan affirmation of HISA and the importance of uniform, national rules.”

Animal advocates were pleased, as well, with Animal Wellness Action executive director Marty Irby thanking McConnell and Rep. Paul Tonko (D-NY) for what he called “their leadership and tireless work to secure language in the year-end spending bill that will ensure the proper enforcement and implementation of the Horseracing Integrity and Safety Act.”

Not everyone was pleased.

Eric Hamelback, CEO of the largest national horsemen’s group, the Horsemen’s Benevolent and Protective Association (HBPA), said he was “disheartened that, once again, legislation governing the horseracing industry was crafted in the dark of night with no public hearings and virtually no industry input.”

He added, “You cannot fix a fundamentally broken law with one sentence. This amendment does not address other substantive issues, nor does it address the funding disaster that remains in the flawed Act.”

And, prior to passage, trainers Larry Rivelli and Wesley Ward issued an open letter, signed onto by hundreds of additional horsemen, calling for HISA as currently constituted to be scrapped, rather than tweaked.

“We believe the Horse Racing Integrity & Safety Act and the private Authority to which it delegates governmental powers has too many flaws, missteps and costs that could have been averted with true inclusion and transparency in its development,” they wrote.