Gambling and Morality Policymaking
By Kathryn R.L. Rand and Steven Andrew Light

This past fall we participated in “Gambling and the American Moral Landscape,” a conference sponsored by Boston College’s Boisi Center for Religion and American Public Life. The conference brought together experts from a wide range of disciplines, including criminology, economics, history, law, political science, psychiatry, sociology and theology. The common thread, of course, was the examination of gambling as a question of morality.

Since so much of the practice of gambling law turns on highly technical questions that actually have much deeper roots in societal ambivalence toward gambling and gambling policy, we thought we’d provide a “big-picture” look at what really gives rise to gaming law practice: morality policymaking and its relation to both legalized gambling generally and Indian Gaming specifically.

Debates over the morality of gambling are fairly predictable. Some people oppose gambling on religious principles, as the concept of “luck” may be inconsistent with divine power or gamblers may exercise poor stewardship of godly gifts. Others believe that gambling is harmful, emphasizing that it undermines a societal work ethic, leads to crime, or creates human and economic costs related to problem and pathological gambling. Still others argue that the costs of gambling fall disproportionately on the poor. On the other side are arguments related to gambling’s role in promoting economic development, “voluntary” taxation to benefit worthy causes or subsidize the public fisc, or the appropriateness of the state’s role in maximizing individual freedom.

Varying degrees of moral objection to gambling have co-existed alongside gambling throughout history and across cultures. As a morally and politically contested “normal vice,” many object to gambling while many more enjoy it. The tension between gambling’s popularity and moral objections to the same have greatly influenced how government treats gambling.

While the moral debate over gambling may be predictable, government responses to that debate are not. Gambling laws have run the gamut from enforced blanket prohibitions to nominal prohibitions to regulation of select games to state-sponsored lotteries to full-scale casino gambling with the market as the primary constraint.

Government regulation of gambling is a quintessential example of morality or social regulatory policymaking, or the use of law to enforce social values. Morality policy issues tend to seem straightforward; an individual can develop a substantive opinion without much specialized knowledge or expertise. Think abortion, gay marriage, medical marijuana and, of course, gambling — all issues of both morality and public policy. This reality gives rise to the tensions inherent to morality policymaking.

As a basis for informed public policy, moral convictions concerning gambling should, in an ideal world, be defended with rational argument and empirical evidence. More often, however, impassioned debates over legalized gambling turn on intensely held opinions fueled by emotion, moral beliefs or ideology rather than findings based on soundly gathered and rigorously analyzed data. In its 1999 Final Report, the National Gambling Impact Study Commission (NGISC) cited a “lack of reliable information” as one of legalized gambling’s defining characteristics: “On examination, much of what Americans think they know about gambling turns out to be exaggerated or taken out of context. And much of the information in circulation is inaccurate or even false, although loudly voiced by adherents.”

This is hardly surprising to those of us who work in the area of gambling law and policy. Yet has much changed since the NGISC’s report nearly a decade ago? We think not, perhaps especially when it comes to Indian Gaming.

As a lawyer and a political scientist who study Indian Gaming, the most interesting questions related to the morality of gambling turn on its relationship to public policy: How should governments approach issues related to gambling? What is the ethical public policy for governments to enact in a society where individuals hold different preferences at different strengths concerning legalized gambling? And does Indian Gaming present different issues that should inform policy specific to that field?

At the Boston College conference, we argued that although it presents some obvious similarities, Indian Gaming is in fact different than legalized gambling generally, for three fundamental reasons: first, Indian Gaming is an exercise of tribal sovereignty, which reflects tribes’ unique status in the American political system; second, conducted by tribal governments, Indian Gaming is public gaming; and third, Indian Gaming is an effective means to address continuing socioeconomic deficits in many Native communities. These differences, we said, mean that regardless of the substantive policy outcomes, governments and policymakers at the local, state, federal and tribal levels are obligated to take account of Indian Gaming’s distinct characteristics when engaged in the law- and policymaking process.

For example, the issue of legalized gambling generally does not require technical expertise to form an opinion; instead, individuals rely on their strongly held core values. The resultant differences in political culture explain inconsistent policy approaches to commercial gambling — Utah’s blanket prohibition against gambling and Nevada’s “wide-open” legalization of gambling, for example, or South Dakota’s authorization of limited casino gaming restricted to the town of Deadwood. Though the policy results may be imperfect, there is nothing inherently “wrong” with citizens relying on deeply held convictions to guide their views (and political participation) on moral issues; indeed, some might argue that exactly such convictions should influence state gambling policy.

But the three fundamental differences of Indian Gaming complicate this view. For many Americans, tribal sovereignty is truly a foreign concept. One cannot understand Indian Gaming at the level required for informed and sound policymaking without first understanding tribal sovereignty — in other words, Indian Gaming issues require “technical expertise” in tribal sovereignty. Further, issues related to legalized gambling generally certainly are appropriately influenced by state citizens’ participation in state political processes. In the context of Indian Gaming, however, the ordinary state-level democratic process should be perceived as secondary to the imperatives of intergovernmental relations. Through the Indian Gaming Regulatory Act of 1988, Congress explicitly subjected Bingo and other Class II games to tribal and federal authority, and intended states and tribes to resolve conflicts over Class III casino-style gaming through government-to-government negotiation.

That Indian Gaming is public gaming, alongside the socioeconomic realities of American Indian populations, also must be taken into account. As “full service” governments facing the challenges of extraordinary and historically rooted socioeconomic deficits, tribal governments use gaming revenue to create jobs, provide government services and build strong government institutions. “If any groups are justified in using gambling for economic development,” noted the Evangelical Lutheran Church in America’s Gambling Study, “it would be the Indian nations.”

In short, while people are entitled to their views on the morality of gambling and certainly may rely on those views to guide their own behavior, different perspectives are not above challenge in the realm of public policy debate. Even, or perhaps especially, with regard to highly controversial issues, one should expect government policymaking to be grounded in reliable information and evidence, not opinion or conjecture. And given the unique legal and political status of Indian Gaming, sound policymaking regarding Tribal Gaming cannot rest on moral views of gambling alone. Informed law, policy and regulation of Indian Gaming require specialized knowledge of its unique differences and the particular public policy goals it is intended to serve.

For more on the “Gambling and the American Moral Landscape” conference, visit http://www.bc.edu/gambling.

BIO
Kathryn R.L. Rand, a law professor, and Steven Andrew Light, a political scientist, are co-directors of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. Their most recent book is Indian Gaming Law: Cases and Materials (Carolina Academic Press, 2008).