Acon-game conspiracy stalks the land, using a fantasy of instant riches to bilk financially vulnerable Americans out of their hard-earned nest eggs. Fortunately, however, a bipartisan group of the nation’s elected officials is on full alert. In the Senate, Republican Susan Collins of Maine has held highly publicized hearings and introduced legislation that would restrict this scam. And public servants like Indiana’s Democratic attorney general Jeff Modisett, who has led a similar consumer-protection crusade at the state level, are bravely identifying the principal evildoers by name. “Frankly,” he says, “Ed McMahon and Dick Clark ought to be ashamed of themselves.”
Ed McMahon and Dick Clark? Yes. Last year, Modisett filed suit against McMahon, Clark, and the magazine sweepstakes they pitch for, American Family Publishers of New Jersey. He did so on behalf of roughly twenty Indiana residents who had complained about the company’s eight-figure grand prize. For some reason, each had fully expected to win that money. None of them did. And so all of them were now out the cost of Sports Illustrated or some other such journal — subscriptions they did not really want or need. Scandal! Outrage! One wonders how McMahon and Clark can sleep at night.
Of course, in fairness to these two gentlemen, we should point out here that most people, including residents of Indiana, understand that they almost certainly haven’t “already won” the sweepstakes periodically announced in their mailboxes — and toss those envelopes directly in the trash. Most people who do enter such contests make no purchase of any kind. And most people who do buy a magazine from Ed McMahon have previously entered his sweep-stakes — for free — and failed to receive a prize; even they know the score. This is not exactly a secret: You don’t have to buy a magazine to win, you’re extremely unlikely to win one way or the other, and if you believe any different, then . . . well, you’re kind of foolish.
Still, we hold no brief for Ed McMahon, who does not market THE WEEKLY STANDARD, and we think profiting from the foolishness of others isn’t a very nice thing to do. So we suppose we can see how Indiana’s attorney general might be concerned over come-ons promising that “You could win the top prize of one MILLION dollars in cash, all at once, EVERY DAY of the week!”
But oddly enough, so far as we can tell, Jeff Modisett has made nary a peep about this particular come-on, which recently appeared in newspapers throughout Indiana. It was an ad for the “Hoosier Lottery,” his state’s own, government-run rip-off, an enterprise that makes Ed McMahon and company look like a bunch of Trappist monks. In stark contrast to the typical magazine sweepstakes, you do have to spend money to play the Hoosier Lottery. You don’t get Sports Illustrated when you lose. And, despite the grotesquely dishonest hype (“Hoosier Millionaire!” “Daily Millions!” “Cash for Life!”), here, too, you have almost zero chance of winning big. The odds on the Hoosier Lottery’s largest jackpot — in the multi-state “Powerball” drawing — are 80 million to one.
We look forward to Jeff Modisett’s lawsuit against Indiana governor Frank O’Bannon.
In the meantime, the Hoosier Lottery — together with comparable numbers rackets operated by the governments of 36 other states and the District of Columbia — will continue suckering millions of Americans to the tune of $ 36 billion a year. And our political system’s addiction to this revenue, more than any other single factor, will shortly make possible a shocking new low in the nation’s near-psychotic embrace of gambling. Though hardly anyone seems aware of it yet, sometime soon, maybe as early as this summer, our living rooms will likely be saturated with prime-time television commercials promoting the blackjack and roulette tables at privately owned casinos. Bet on it.
Nominally, at least, federal law continues to prohibit broadcast-media gambling ads, as it has since 1934. Section 1304 of the U.S. criminal code’s Title 18 bars radio and television promotion of “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or part upon lot or chance.”
But since 1975, first and most significantly to accommodate the hunger of state treasuries for lottery proceeds, Congress has carved gaping exemptions into this gambling-commercial “ban,” such that only casinos — and only those casinos not operated by Indian tribes — are covered by it any longer. Nowadays, the Hoosier Lottery may spend millions of dollars to market its “games” of chance on the airwaves. But the Las Vegas Hilton may not spend a dime.
Which inconsistency places what remains of Section 1304 in considerable tension with the Supreme Court’s recent First Amendment jurisprudence. The High Court says that “commercial speech” about lawful business enterprises may only be regulated so as directly and narrowly to advance a “substantial government interest.” And at this point, what “substantial government interest” can Section 1304 still plausibly support? After Congress has allowed, and the various states have eagerly administered, an unprecedented explosion in betting activity nationwide, can anyone say with a straight face that government maintains a “substantial interest” in restricting the spread of gambling? Sadly, the answer is no.
Twice in the past thirteen months, the Supreme Court has declined to review lower-court rulings that Section 1304 is unconstitutional. Instead, the High Court has scheduled oral arguments a few weeks from now in Greater New Orleans Broadcasting v. United States, a lonely Fifth U.S. Circuit Court of Appeals decision upholding the casino-advertising ban. There isn’t a serious Supreme Court-watcher in the country who thinks the justices intend to do anything but strike down the ban for good. Section 1304 is doomed.
And when it dies, probably in June, will the big casino conglomerates start buying national television time like it’s going out of style? Ashton Hardy, the Louisiana media-law expert who persuaded the Supreme Court to hear Greater New Orleans, says yes: “I have no doubt of it.”
By then, of course, Jeff Modisett and Susan Collins may well have Ed McMahon in leg irons. But honestly, now: Fat lot of good that’ll do anybody. America’s real sweepstakes problem, the giant industry of private and state-sponsored gambling, continues to metastasize. And no more than a handful of our politicians seem to care.
David Tell, for the Editors
