[Congressional Record Volume 142, Number 116 (Thursday, August 1, 1996)]
[Senate]
[Pages S9449-S9450]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PRIVATE GAMBLING AND PUBLIC MORALITY

 Mr. SIMON. Mr. President, Prof. George Anastaplo of Loyola 
University School of Law in Chicago recently spoke at a convention in 
Las Vegas, commenting about legalized gambling and where we are going 
as a nation.
  It is a thoughtful presentation that I am appending at the end of 
these remarks. I have condensed his original paper somewhat.
  What is interesting to me particularly is to read a quotation from an 
1850 U.S. Supreme Court decision, Phelan versus Virginia, in which the 
Court comments on lotteries as compared to private gambling. The Court 
said:

       The suppression of nuisances injurious to public health or 
     morality is among the most important duties of government. 
     Experience has shown common forms of gambling are 
     comparatively innocuous when placed in contrast with the 
     widespread pestilence of lotteries. The former are confined 
     to a few persons and places, but the latter infests the whole 
     community: it enters every dwelling; it reaches every class; 
     it preys upon the hard earnings of the poor; it plunders the 
     ignorant and simple.

  Mr. President, I ask that the condensed version of Mr. Anastaplo's 
remarks be printed in the Record.
  The condensed version follows:

                ``Private'' Gambling and Public Morality

                         (By George Anastaplo)

       Gambling is in evidence all around us. For example, Texas 
     bingo halls took in $63,000,000 in 1994. The pervasiveness of 
     gambling is evident to anyone who follows sports: the ``point 
     spread'' helps make each encounter of even mismatched 
     opponents ``interesting'' and hence the occasion for 
     wagering. Officials of professional leagues used to worry 
     about the influence of gambling. For example, it was once 
     argued, ``The values of football are hard work, 
     disappointment, and honest competition, which must exist in 
     an honest environment.'' Gambling, it was feared, would 
     ``accentuate'' the pressures on football players beyond a 
     tolerable point, and change a sporting event into a gambling 
     spectacle. Now, the officials of professional leagues 
     cooperate with the gambling industry to make sure that games 
     are not ``fixed.''
       But, it can be noticed, the sports contests that are 
     gambled upon may often be intrinsically interesting--and can 
     attract attention without any organized wagering. But 
     lotteries, slot machines, and the like are far less 
     interesting in themselves. Even so, they can be quite 
     entertaining, even thrilling, for participants. Thus, it has 
     been observed, ``Unlike narcotics, which creates droves of 
     criminals who prey on the generally poor black community, the 
     numbers game seems to many people to be just a potent, daily 
     titillation for poor people seeking a rainbow's end.'' The 
     head of an off track betting corporation, upon being accused 
     of taking money from the poor, asked rather rhetorically, 
     ``Who's to say what's gambling and what's entertainment?'' 
     But then, nicotine, too, can be engaging for the addict, 
     however deadly cigarette-smoking may be.
       We tend to be much more relaxed, as a community, about the 
     damage done by gambling than were some of the earlier 
     generations in this country. Tolerance for lotteries, in the 
     first quarter of the Nineteenth Century gave way, because of 
     growing abuses, to efforts by state governments to put 
     lotteries out of business. In 1895 Congress provided support 
     for these states with its own legislation, ``An Act for the 
     Suppression of Lottery Traffic through National and 
     Interstate Commerce and Postal Service, Subject to the 
     Jurisdiction and Laws of the United States.''
       A constitutional inquiry into what was indeed ``subject to 
     the jurisdiction and laws of the United States'' elicited 
     this question from the United States Supreme Court in 
     Champion v. Ames: (The Lottery Case), 188 U.S. 121, at 356 
     (1903):
       ``If a state, when considering legislation for the 
     suppression of lotteries within its own limits, may properly 
     take into view the evils that inhere in the raising of money, 
     in that mode, why may not Congress, invested with the power 
     to regulate commerce among the several states, provide that 
     such commerce shall not be polluted by the carrying of 
     lottery tickets from one state to another?''

     Further on the Court argued (ibid., at 357-58):
       ``[B]ut surely it will not be said to be a part of anyone's 
     liberty, as recognized by the supreme law of the land, that 
     he shall be allowed to introduce into commerce among the 
     states an element that will be confessedly injurious to the 
     public morals. . . . We should hesitate long before adjudging 
     that an evil of such appalling character, carried on through 
     interstate commerce, cannot be met and crushed by the only 
     power competent to that end.''

     It is evident how people in authority in the first decade of 
     this century were expected to speak about such gambling as 
     the lottery. The dissenting opinion in Champion v. Ames made 
     no defense of lotteries, arguing instead that the power to 
     suppress such ``a harmful business'' belong to the states, 
     not to the national government.
       The majority of the Supreme Court in Champion v. Ames 
     insisted that Congress should be able to act:
       ``. . . to protect the country at large against a species 
     of interstate commerce which, although in general use and 
     somewhat favored in both national and state legislation in 
     the early history of the country, has grown into disrepute, 
     and has become offensive to the entire people of the nation. 
     It is a kind of traffic that no one can be entitled to pursue 
     as a right.''

     I mention in passing the likelihood that the current 
     indulgences in lotteries and the like will, because of 
     emerging abuses and harmful consequences, eventually be 
     subjected once again to severe restrictions, In fact, it is 
     already likely that lotteries would not be approved in many 
     of the states where they now operate, if put to a popular 
     vote by referendum.
       No one on the 1903 Court doubted that state governments 
     could try to suppress lotteries if they wished. Phelan v. 
     Virginia, 8 Howard (49 U.S.) 162 (1850) was cited to this 
     effect. The opinion in that case, upholding an 1834 act of 
     Virginia forbidding the sale of lottery tickets, includes 
     this reminder of how lotteries were once regarded in this 
     country:
       ``The suppression of nuisances injurious to public health 
     or morality is among the most important duties of government. 
     Experience has shown that the common forms of gambling are 
     comparatively innocuous when placed in contrast with the 
     widespread pestilence of lotteries. The former are confined 
     to a few persons and places, but the latter infests the whole 
     community: it enters every dwelling; it reaches every class; 
     it preys upon the hard earnings of the poor; it plunders the 
     ignorant and simple.''
       This, then, is the sort of public opinion, running back to 
     1850 and earlier, that the Supreme Court could invoke in the 
     opening years of this century. Now, at the end of the same 
     century, not only are lotteries no longer spoken of in this 
     fashion by officials, but the states of this Union are 
     themselves in the business of running and vigorously 
     promoting lotteries with ever-growing prizes. In Illinois, 
     for example, the gambling industry contributed more than a 
     million dollars to political candidates in 1995. Furthermore, 
     it has been able to hire a former governor of the state and 
     other former Illinois officials as paid lobbyists.
       This is not just an American phenomenon, of course. State 
     lotteries are very much in evidence in Europe and elsewhere. 
     The ``pools'' have long been a feature of British life. And 
     something is to be said for legalizing (or at least 
     decriminalizing) what is likely to be done anyway, thereby 
     permitting both regulation and taxation. But is not the 
     state's doing it, and promoting it, something significantly 
     different from toleration, taxation and regulation? Is it as 
     if the state had gotten into the business of producing and 
     selling firearms, prostitutes, alcoholic beverages, 
     cigarettes, and other narcotics?
       The newest gambling rage in this country, however, is not 
     lotteries but rather casinos. These are licensed by states 
     which count on a hefty cut of the revenues. Respectable 
     newspapers prod their legislatures to take measures to 
     counter the competition from the casinos in neighboring 
     states. Consider, for example, the opening and closing 
     sentences of a recent Chicago Sun-Times editorial (``Casino 
     Shutdown in East Dubuque, Illinois Forces Gambling Issue,'' 
     December 7, 1995):
       ``Two Illinois riverboat casino got no satisfaction from 
     the Legislature last month when they asked for help in 
     competing with Iowa boats across the Mississippi River. . . . 
     While the Legislature fiddles, Illinois gaming revenue floats 
     across the Mississippi to lucky Iowa.''

     It is the practice of the gambling industry, by the way, to 
     refer to the ``entertainment'' it offers as ``gaming,'' not 
     as ``gambling.''
       A recent Chicago Tribune editorial, supporting an effort to 
     exact more revenues from riverboat casinos, begins with these 
     observations (``Bet on Edgar's casino tax plan,'' March 8, 
     1996):
       ``Who says gambling doesn't pay?
       ``Last year the Empress Casino in Joliet hauled in $200 
     million, after paying off bettors. For Harrah's, also in 
     Joliet, the figure was more than $190 million.
       ``Gov. Jim Edgar's proposed 1997 state budget would impose 
     on those and other high-rolling casinos a graduated tax to 
     tap some of the windfall for the state's schools--and rightly 
     so.
       ``Under current law, all casinos are taxed a flat 20 
     percent of their adjusted gross receipts (that's what they 
     have left after they've paid out winnings), regardless of how 
     much money they're making.
       ``For a struggling operation (and there are some), 20 
     percent is too much; for the widely successful ones, it's a 
     bargain, and for the state it's an inefficient approach to 
     taxation of this protected industry.''

     Immediately following this Tribune editorial about how the 
     state should take further advantage of ``this protected 
     industry'' is an

[[Page S9450]]

     editorial, ``No more cosying up to gangsters,'' commenting 
     upon the conviction of eight members of a gang for 
     distributing narcotics in Chicago and the suburbs. There is 
     much to be said, of course, for the decriminalization of drug 
     sales in this country, just as there has been for the 
     decriminalization of gambling. But ``cosying up'' to, and 
     relying upon, such activities, and even promoting them for 
     their revenues pose questions that we seem to have lost sight 
     of about the role of law in sustaining morality.
       Far from encouraging morality, we find ourselves catering 
     to vices and trying to exploit them. To some extent, as we 
     have noticed, gambling is a form of self-chosen entertainment 
     less harmful in many ways than some other forms of 
     entertainment. It tends to be for most of the ``players'' 
     more self-correcting than several other forms of self-abuse, 
     such as alcohol and drug addiction.
       But this sort of entertainment is not intrinsically 
     satisfying, requiring as it does constant intensification in 
     order to maintain its interest for participants. Thus, it has 
     been noticed by a Haverhill, Massachusetts newspaper 
     (``Opinionline,'' USA-Today, November 13, 1995, p. 13A):
       ``We've gone from the Sweepstakes era, with a once-a-week, 
     50-cents-per-ticket drawing, to state-run and fostered 
     gambling industry which is worth millions. The state 
     government is addicted to gambling, as government finds ways 
     to avoid dealing with the issues of how much money it should 
     spend and what tax it ought to levy. But something is 
     drastically wrong when government becomes increasingly 
     dependent on the misfortunes of its people to finance its 
     operations.''
       There is something ``realistic'' in recognizing that people 
     will gamble, however much government attempts to suppress it. 
     The considerable lure of gambling, sometimes with 
     catastrophic consequences, has long been known. But what 
     seems to be forgotten from time to time is the price paid, 
     even in economic terms, for widespread gambling. The next 
     decade should see the publication of more and more studies 
     which expose to public view the hidden costs of the revenues 
     that are derived from the gambling industry. These include 
     the effects upon small businesses as large sums of money are 
     siphoned out of the community by casinos. These hidden costs 
     include, as well, the social services that have to be 
     provided the families that are victims of gambling 
     addictions. (The University of Chicago library has extensive 
     entries under the catalogue heading: ``Addictive disorders 
     update: alcoholism, drug abuse, gambling.'')
       Even more important than the economic and social costs of 
     intensified addiction is what has been happening (but not 
     only because of the gambling industry) to the authoritative 
     opinions of the community. Hedonism is encouraged along with 
     the notion of getting ``something for nothing.'' Self-
     centeredness is thereby legitimated, as may be seen in the 
     growing scandal of the level of compensation these days for 
     the chief executive officers of our major corporations 
     (especially when their compensation is compared to that of 
     their equally successful European and Japanese counterparts). 
     It sometimes seems that shamelessness has become the order of 
     the day. . . . A billboard recently on display in Chicago 
     invited us to a Wisconsin Dells casino with the slogan, 
     ``Come to the Land of Milk and Money.'' (This advertisement 
     was illustrated by the drawing of a slot-machine showing 
     three cows lined up: a real winner!) That, we are thus told, 
     is the new Promised Land.
       The public should be encouraged in these matters to face up 
     to two sets of delusions. This can help us face up in turn to 
     what we are doing and how best to accommodate ourselves to 
     the vices that human beings are bound to have.
       The first set of delusions has to do with what organized 
     gambling depends upon: the systematic fleecing of the 
     ignorant by the informed. Professional gamblers do not 
     believe in gambling any more than professional panderers 
     believe in love: gambling magnates are no more gamblers than 
     casino riverboats are boats. The huge outlays that casino 
     operators are willing to devote to securing licenses reveal 
     what a treasure-trove the well-placed casino must be. The 
     sooner that casino customers recognize that they are suckers, 
     the sooner most of them are likely to entertain themselves 
     some other way.
       The second set of delusions has to do with the notion that 
     revenues derived from the gambling industry are a painless 
     substitute for the taxation required for schools and other 
     essential community services. Thus, it can be said that 
     ``money raised through legalized gambling is one of the few 
     forms of taxation that people voluntarily and cheerfully 
     pay.'' (Geis, Not the Law's Business?, p. 237) But for an 
     action to be truly voluntary a minimum of understanding is 
     required. Consider, for example, these observations (``Take a 
     Hard Look at Costs of Gambling,'' Chicago Sun-Times, 
     September 28, 1955:
       ``Some $330 billion was wagered legally in 1992, up 1,800 
     percent from 1976. In Mississippi last year, gamblers wagered 
     $29.7 billion, whole total retail sales were only $27.6 
     billion. Since casinos opened in Atlantic City in 1978, 100 
     of the 250 restaurants have closed, as have all the movie 
     theaters.''
       ``Despite evidence that gambling may not be the panacea 
     once thought, legislators continue to legalize gambling as a 
     way to bring money into state coffers. But what are its costs 
     long-term?''

     The need for reliable information here, to which I have 
     already referred, may well be served by the current efforts 
     in Congress, by Senator Paul Simon and others, to investigate 
     gambling in this country. The thesis to be tested is that 
     offered last year by a syndicated columnist (William Safire, 
     ``New Evil Empire,'' New York Times, September 28, 1995, p. 
     A17):
       ``Gambling is a [massive] industry that is inherently 
     immoral, corrupting public officials, enriching criminals, 
     addicting and impoverishing the young and vulnerable.
       ``But the gambling racket--whether in state-licensed 
     casino, state-sponsored lotteries or on glitzy reservations 
     of phony Indian tribes--has been promoted by public officials 
     as a great way of painlessly raising revenues, with state 
     voters acting as suckers. As a result officially endorsed and 
     government-advertised gambling now has America by the 
     throat.''
       A report from Deadwood, South Dakota sums up the suicidal 
     course we have followed in our delusions. A woman who has 
     supported the effort to legalize casinos in 1989 is now 
     appalled upon seeing that the casinos ``have all but wiped 
     out [her] town's retailers'' (James Sterngold, ``Spread of 
     Gambling Prompts Calls for Federal Study of It,'' New York 
     Times, November 24, 1995, emphasis added):
       ``Strolling past storefront casinos that have replaced 
     everything from the state social services office to the 
     insurance broker and department store, [she] commented, `I'm 
     homesick all the time and I never left home. We were 
     completely unrealistic.' ''

     Perhaps the most troublesome feature of all this may be that 
     we have drifted into a much-changed way of life without much 
     serious study or deliberate choice.
       This paper was prepared for the Law Panels at the American 
     Culture Association Convention, Las Vegas, Nevada, March 25, 
     1996. George Anastaplo is Professor of Law at Loyola 
     University of Chicago.

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