Following the Senate’s lead, the U.S. House of Representatives passed an omnibus spending bill on Friday containing a one-paragraph amendment that supporters of the Horseracing Integrity and Safety Authority hope will address legal issues surrounding the authority’s enabling legislation. The House of Representatives passed the massive legislative package on Friday in the midst of the rapid advance of a winter front across the U.S. that threatened legislators’ ability to return home for the holidays. The Senate had passed the same package on Thursday after skirting several last-second objections to a variety of bills contained in the package. The amendment was inserted into the package on Monday at the behest of a variety of legislative supporters of HISA, including several of the co-sponsors of HISA’s enabling legislation, which was attached to a similar package of spending bills late in 2020. After the amendment was added to the package, two lawmakers, Sens. Charles Grassley, a Republican from Iowa, and Joe Manchin, a right-leaning Democrat from West Virginia, pushed for a vote to strip the amendment from the bill, but that effort was unsuccessful. :: Bet the races with a $200 First Deposit Match and FREE Formulator PPs! Join DRF Bets. Horsemen and racing commissions in Iowa and West Virginia have been some of the most vocal critics of HISA, and the local chapters of the Horsemen’s Benevolent and Protective Associations in those states had organized letter-writing campaigns to Grassley and Manchin in an attempt to block any amendment from being introduced and approved. The approval of the amendment adds a new wrinkle to the legal issues surrounding HISA, which has been challenged in court by a variety of horsemen’s groups, racing commissions, and state attorneys general. Although lower courts upheld HISA’s constitutionality last year in two separate decisions, those rulings were appealed. Then, on Nov. 18, a three-judge panel of the U.S. Fifth Circuit Court of Appeals ruled that HISA was “facially unconstitutional” because, in the court’s opinion, the Federal Trade Commission was “subordinate” to HISA. It is currently unclear how the approval of the amendment will impact HISA’s immediate operations or if it will nullify the Fifth Circuit’s decision. HISA had already shelved its anti-doping and medication control program, which was set to be implemented on Jan. 1, after the FTC declined to approve the rules governing the program, citing the uncertainty created by the Fifth Circuit ruling. Still, HISA would, at the very least, need to re-submit its rules to the FTC for approval before it could launch the anti-doping program, which includes, in part, the takeover of drug-testing operations in more than a dozen racing jurisdictions. Approval would take at least three months, if not longer. In the meantime, HISA and its opponents are also expected to continue to seek rulings in courts favorable to their positions, creating the potential for further complications. The single paragraph contained in the legislative package passed on Thursday includes language that says that the FTC “may abrogate, add to, and modify the rules of the Authority.” In the opinion of supporters of the amendment, that language would directly address the Fifth Circuit’s ruling. Supporters of HISA’s 2020 enabling legislation had said that they modeled the bill on legislation that created the Financial Industry Regulatory Authority, a private, non-profit company created in 2007 that writes and enforces rules governing registered brokers and broker-dealer companies in the U.S. The amendment contained in the omnibus package contains language that is similar to language in the FINRA model. Despite the approval by Congress on Friday, officials of horsemen’s groups that challenged HISA’s constitutionality have already said that they will continue to mount legal efforts to nullify the authority’s jurisdiction.   Since HISA began devising its rules and seeking approval from the FTC, some horsemen’s groups, notably the National Horsemen’s Benevolent and Protective Association and many of its local affiliates, have criticized the authority for failing to involve horsemen in its efforts. Horsemen have also contended that HISA’s programs will be too costly for some tracks, and that the current state-by-state regulatory structure can better serve the industry’s regulatory needs. HISA was designed to be an “independent” overseer of the racing industry with limited input from industry constituencies in determining how the sport would be regulated and policed. Nevertheless, in response to criticism from horsemen’s groups, HISA formed a “Horsemen’s Advisory Committee” last summer to take input from those constituencies who had claimed to be left out of the process. The legal challenge to HISA rests, however, on a question as to whether its structure violates a principle of the Constitution generally referred to as the “non-delegation clause,” which prohibits the federal government from handing over regulatory power to a private company. It is currently unclear if the new amendment will address that central concern. A similar challenge to HISA’s enabling legislation is currently before the U.S. Sixth Circuit Court of Appeals. Oral arguments in the case were heard early in December, and a decision in that case is expected in early 2023. If the Sixth Circuit upholds the lower court’s ruling that said that HISA’s structure did not violate the non-delegation clause, then the case could be ripe for review from the U.S. Supreme Court, considering that two equal courts, the Fifth Circuit and Sixth Circuit, issued contradictory decisions. In that case, the potential remedy passed by Congress on Thursday may also be weighed by the court. :: Want to learn more about handicapping and wagering? Check out DRF's Handicapping 101 and Wagering 101 pages.