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By: Staff Member, Thomas E. Travis[1]

The Kentucky General Assembly currently has two gambling bills pending before it this session. First, House Bill 67 proposes a change to the Kentucky State Constitution to allow the General Assembly to permit and regulate casino gambling in the state.[2] The Kentucky Constitution currently bans all forms of “lotteries,” granting an exemption for the state lottery.[3] Kentucky courts have interpreted this ban to be inapplicable to horse racing,[4] but casino gambling is within the scope of the prohibition, requiring a constitutional amendment to legalize it.[5] Second, House Bill 68 is essentially an enabling act, substantively establishing the permit process and regulatory structure in the case that casino gambling is legalized.[6]

Stan Cave, head of the Family Foundation and Chief of Staff to former Governor Ernie Fletcher (a staunch opponent of racetrack gambling expansion), recently declared that the passage of HB 68 in the 2014 session would be unconstitutional. He claimed it is unconstitutional to pass the enabling act before the public passes the amendment. Further, Mr. Cave contends that if HB 68 were passed, “lawmakers would violate their oath of office to uphold the constitution.”[7]

While Mr. Cave’s rhetoric may score political points with Kentucky’s religious voters, it is unlikely there is much basis to his contention. HB 68 itself contemplates the fact that the statute would be dead letter if the amendment failed to pass.[8] In other words, passage of the bill would confer no actual governmental authority to expand gambling; it would merely have the expansion “shovel ready” upon approval of the amendment. Furthermore, it is a stretch to suggest that the oath of office is violated in passing a bill that is later found to be unconstitutional, especially on grounds as shaky as in the instant circumstance.

Despite the fact that a constitutional challenge would be feeble at best, this does raise questions about the political motivations in packaging the bills. Perhaps prospectively enabling the expansion represents a growing concern among state Democrats that Republicans will take control of the General Assembly and Governor’s Mansion. While a large part of the social conservative coalition still exists, many Republicans, including likely gubernatorial candidate James Comer, the Commissioner of Agriculture, are on board with the expansion.[9]

In short, a constitutional challenge to HB 68 is in large part political theater to galvanize support for November. Despite doubtful illegality, the political undertones suggest this is a conversation warranting further attention. Whether it is electoral paranoia or campaign strategy, the packaged legislation will continue to spark controversy until the voters speak.
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[1] Staff Member of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law 2013-2014: B.S. 2012 Western Kentucky University; J.D. expected May 2015 University of Kentucky. The author would like to thank Professor Scott Bauries for his advice on this topic.
[2] H.B. 67, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[3] Ky. Const. § 226(3) (“Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”).
[4] See Commonwealth v. Kentucky Jockey Club, 38 S.W. 2d 987 (Ky. 1931).
[5] See OAG 93-58.
[6] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[7] Brammer, supra note 2.
[8] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014) (“effective upon certification of election results in November 2014 if a constitutional amendment is enacted by the General Assembly and approved by the voters permitting the General Assembly to authorize casino gaming”).
[9] Kentucky Wins, Our Coalition, http://kywins.com/our-coalition (last visited February 23, 2014).