Group challenges constitutionality of expansion measures
As if legislation to expand gaming in Kentucky did not face enough challenges just to get passed, the Family Foundation may have thrown a wrench into the process of passing at least one of the two gaming bills currently before the state House.
The conservative Family Foundation has opposed every bill brought up to add casino gaming to Kentucky’s storied racetracks—bills that have failed in each of the past several years. Last week, Stan Cave, general counsel for the Lexington-based group, argued before a House committee that one of the bills before the chamber is, in itself, unconstitutional.
The two bills before the House include a measure to create a ballot question to amend the state constitution to allow casino gaming and an enabling bill that spells out what form casinos would take. Both bills are being pushed by House Speaker Pro Tem Larry Clark, a Democrat from Louisville. The ballot question would ask voters whether the constitution should be amended to “allow the General Assembly to permit casino gambling by general laws.”
The enabling legislation lays out a plan to license and regulate five racetrack casinos and three stand-alone casinos. Testifying before the House Licensing and Occupations Committee, Cave argued that enacting this bill would violation the state constitution, because lawmakers cannot approve any bill legalizing what is prohibited by that constitution.
“The case law says the General Assembly may only enact legislation which is authorized by the constitution,” said Cave. “And if the constitution prohibits gambling, which by definition it does or they wouldn’t be running a proposed amendment to the constitution, then proposed enabling legislation is prohibited by the constitution.”
Cave said the Family Foundation would consider suing to block any enabling bill passed before voters approve a constitutional amendment. Under Cave’s argument, the only legal bill to specify how casinos should be legalized would have to be passed the year after voters approved the amendment, which would mean Kentucky casinos would not become reality until mid-2015 at the earliest—perhaps after the House loses its Democratic majority.
Kentucky Governor Steve Beshear, who has been trying to expand gambling in the state since he was elected, disagrees, telling the Louisville Courier-Journal that both bills can be enacted simultaneously. “I think that’s inherent in the power of the General Assembly to pass legislation that might be contingent on another event happening,” Beshear said.
Under the Family Foundation’s argument, a bill in the Republican-controlled state Senate also would be subject to legal challenge. That measure, sponsored by state Senator Dan Suem, a Louisville Republican, would allow casino gambling at no more than seven locations with 10 percent of profits guaranteed to the horse racing industry, and the state’s share going to “job creation, education, human services, health care, veterans bonuses, local governments and public safety.”
After Cave’s House Speaker Pro Tem Clark said he will not push his enabling bill through his House committee until the Senate has approved a constitutional amendment to expand gambling.
Many other House members have taken the position that no constitutional amendment is needed to expand gambling to create casinos, arguing that only a bill passing with a simple 51 percent majority is required to expand the gambling that already exists to include casinos. A constitutional amendment would require a three-fifths majority in both chambers and then ratification by voters in November.
Pro-gaming groups point out that Kentuckians are already spending money on casino gambling—money that is going to other states.
“The truth is, (casinos) are already here, located just a few hundred feet from Kentucky’s borders,” said Jonathan Blue, the co-chair of the pro-casino Kentucky Wins!, in a statement. “It is completely irrational to suggest that it is worth giving up $500 million in tax revenue to maintain 500 feet of separation. We must stop sending hundreds of millions of Kentucky dollars a few hundred feet away, to be used to build Indiana roads, Ohio schools and create Illinois jobs.”