CONTRIBUTOR

Make Online Poker Legal? It Already Is.

Posted April 28, 2011, at 9:11 p.m.
OpArt by Mark Weber

Throughout my life, one of the few constants, as well as one of the great joys, has been playing poker. It’s also something I’m quite good at. Like the time I was playing Texas hold ‘em against an aggressive player who had been throwing down big bets all night. I remember matching him, bet for bet. The dealer laid down the final card — “the river” — and, since the straight I was working for never appeared, I had only a pair of jacks. I almost folded before I saw my opponent grab a $50 chip and rub it with his thumb in a clear “tell” that his hand was weak. I knew I had him, and  raised. He folded. He’ll never know that I was bluffing, but he sure knew that I won the pot.

That’s the beauty of poker. My ability means that I can beat my opponent in spite of what hand I am dealt. Like any game, poker also brings heartbreaking losses. When I was in college, I once held four of a kind, a great hand with about a one in 4,000 chance of turning up. Still, I got beat by a straight flush — dealt once every 72,000 hands. But as any poker player knows, your skill at the game determines whether you win, not necessarily the cards.

I think that’s why Americans, including politicians, are so enamored with poker: At the table, we control our own destiny. When I served in the U.S. Senate, some of my colleagues had a regular game, which was not unusual among members of Congress. Poker has long occupied legislators during the congressional calendar’s many late nights. In fact, it is said that when then-Vice President Harry Truman first heard that President Franklin Roosevelt had died, he was playing poker with House Speaker Sam Rayburn.

With so many poker players, you would never think that Congress would pass such ambiguous laws to regulate card-playing. Congress knows that poker is a game of skill. Congress knows that playing games of skill in American homes needn’t be outlawed. And Congress knows that, since poker is a game of skill that is legal in the home, it should be legal to play it online. Safe assumptions, right?

Wrong, according to the President Barack Obama’s Justice Department as run by Attorney General Eric Holder. On April 15, the U.S. attorney for the Southern District of New York indicted 11 people involved with the three largest Internet poker sites that welcome U.S. players, alleging money laundering and fraud. The domain names of the sites have been seized, and they have ceased domestic  operations. Ten million Americans who play poker on the Internet cannot do so — and they are angry about it. Only after players protested did the Department of Justice agree to allow access to money deposited in personal accounts on these websites.

This is an attack on Internet poker and American poker players like me. Through these strong-arm tactics, prosecutors think they can ban Internet poker. Instead, they are making millions of Americans victims in an attempt to make online poker illegal without the support of legislators or the public.

Internet poker does not violate any federal law or the laws of most states. The highest court that has ruled on the issue — the U.S. Court of Appeals for the 5th Circuit in the 2002 In Re: MasterCard decision — stated that the 1961 Wire Act, anti-gambling legislation routinely cited by the Justice Department to malign online poker, applied only to online sports betting. Most federal and state laws define gambling as games of chance. But poker is a game where a player’s success is predominantly determined by that player’s skill. Although the Department of Justice continues to insist that Internet poker is a game of chance, the law — and any poker player’s experience — just doesn’t support that contention.

No one, including Holder, suggests that it is illegal for an individual to play poker on the Internet. And that is as it should be. It is unfathomable that policymakers would tell adults that they cannot enjoy a game of Texas hold ‘em — in which the player’s ability has direct impact on the outcome — in the privacy of their homes on computers and Internet connections they pay for. Yet these same lawmakers think it’s perfectly fine for people to bet on horses or play the lottery, two other forms of gambling. Why the Justice Department feels it can roll the dice and pick one form of  gaming to ban over another is beyond me, and it is beyond the millions of Americans who are being denied their hobby and, for professional players, their livelihood.

If I were still in the Senate, I would recognize that it is time to clarify federal law: Online poker is legal. Congress should license and regulate Internet poker and allow Americans to play the game they love on trusted, safe websites without fear that the FBI will come knocking.

Until that happens, poker players will hold accountable those ultimately responsible for this outrage: Obama, Holder and those in Congress who resist poker-licensing legislation. As a well-known poker player himself, the president should know that the Southern District of New York has overreached in spectacular fashion and should be reined in. Congress should hold the administration accountable for this outrageous affront to individual freedom and quickly pass legislation that would codify, once and for all, the right of Americans to play the greatest American game.

True to form, American poker players like me are not settling for the hand we have been dealt by the actions of the Justice Department or the inaction of Congress. We are fighting to protect our freedom to play online poker. We are fighting for Internet freedom writ large. We are fighting for our winning hand. And, this time, we’re not bluffing.

Alfonse D’Amatis a former three-term U.S. senator from New York and chairman of the Poker Players Alliance.

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