Those who have argued against the introduction of casino-style gambling in Kentucky have always pointed to a list of potential casualties that would follow from it. The list not only includes small businesses that operate in areas close to casinos, which would suffer lost business, local communities that would have to increase law enforcement to deal with increased crime, as well as problem gamblers who would have their problem made worse.
But now we can add another potential casualty to the list: the state Constitution.
Last year, proponents of a casino bill talked of "letting the people decide" on the issue, misportraying Kentucky's Constitutional ratification process as a ballot referendum, a completely different thing. This allows lawmakers to shirk their Constitutional responsibility to vote for a Constitutional amendment because they think it's a good idea the voters should ratify, rather than wash their hands in regard to the issue itself, and asking the people to do what the Constitution expects them to do themselves.
This year, the casino industry is back with a new and even more self-serving Constitutional fiction: that the Lottery Amendment of 1988 authorized video slot machines. This, of course, will come as news to the Kentuckians who actually voted for the Lottery, none of whom were told they were voting for other kinds of gambling.
But it wouldn't be the first time a Lottery promise was broken.
For years after the Lottery was passed, many legislators confessed that one of the most frequent questions their constituents asked them was, "Whatever happened to the Lottery money?" When the Lottery was passed, voters were told the money would go to education. Only ten years--and many constituent phone calls--later did the General Assembly attempt to keep the promise.
And, wouldn't you know it, the backers of the new plan are promising the same thing: the money is going to go for education--and a few other things.
After not doing what they said they were going to do with the Lottery money, they are now going to do what they said they were not going to do with the law itself: use it to justify other forms of gambling.
When asked in 1999 to determine the Constitutional status of placing video slot machines at Kentucky's racetracks, then Attorney General (now Congressman) Ben Chandler said, "... the Attorney General concludes that courts will not interpret the Constitution to authorize the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals."
And for good reason.
In fact, every opinion rendered by a Kentucky attorney general on this or a related issue has found the same thing--except one. And that one was written by the sponsor of the video slots legisation: Speaker of the House Greg Stumbo.
In the pamphlet issued by the Legislative Research Commission to Kentucky voters in 1988, it said the state would be adopting a "modern day" state lottery. A modern day state lottery consisted of instant and online games, not video slot machines.
The question of whether the Lottery amendment would include other forms of gambling such as "electronic devices and slot machines" actually came up in the floor debate over the bill when Rep. Louis Johnson introduced an amendment to explicitly prohibit them. But Lottery amendment sponsor Bill Donnermeyer assured Johnson that the Lottery amendment "does not provide for slot machines or anything like that."
That's what the voters were told and that's what the lawmakers who passed the amendment were told. Courts in states where the same bait and switch has been attempted have consistently ruled such laws unconstitutional, including courts in South Dakota, South Carolina, Ohio, Florida, West Virginia, Kansas, and California.
This doesn't bode well for a piece of legislation that will surely be challenged in court should it pass the General Assembly in a special session.
In fact, in 2002, a key legislator told a reporter that he agreed with Ben Chandler that voters did not intend to include casino-style games in the Lottery.
That key legislator was House Majority Floor Leader Greg Stumbo.
It is instructive to note that the Lottery Corporation has already tried once to exceed the bounds of the Lottery Amendment. In 1989, it attempted to implement a "Kentucky Sports Lotto." But the Lottery Corporation backed off when a legal suit was filed arguing that it was unconstitutional.
It is also instructive to note who brought the suit: the Kentucky Thoroughbred Association.
So are lawmakers going to do with the law itself what they did with the Lottery money? Break their promises? If they do, then they can simply change their now abandoned slogan from last year, "Let the people decide," to an entirely new one:
"Let the people be hoodwinked."