William Perry Pendley

It has been a captivating few weeks for Illinois. First, Illinois’s governor—responsible for filling Barack Obama’s vacancy in the U.S. Senate—is accused of trying to sell the seat. Then, the governor—in an audacious game of one-upmanship—names an African American; demands that his appointee—who would become the Senate’s only Black—be seated, with which demand the Senate complies; but is impeached and removed from office anyway. Finally, the newly-minted Senator states for the first time—reportedly because he had never been asked—that he tried to raise money for the former governor. As Will Rogers once said, “There is no trick to being a humorist when you have the whole government working for you."

There is nothing funny, however, about another Illinois political shenanigan. Unlike the humorous high jinks of the former governor—all of which illustrate why Chicago is a clichéd pseudonym for corruption—but which affect few outside Illinois, this new issue could affect all citizens. Fortunately, it may be resolved, not contingent on political exigencies by those running the U.S. Senate, but in conformance with the Constitution by the U.S. Supreme Court.

In May 2006, Illinois’s General Assembly passed a law requiring nine riverboat casinos, operating pursuant to the Riverboat Gambling Act of 1990, to contribute “3 percent of their [daily] adjusted gross receipts” to a “Horse Racing Equity Trust Fund.” The General Assembly did so because on-track betting revenues at the five Illinois tracks with live horse racing had declined, purportedly due to the lure of riverboat gambling. Although, in 1999, the General Assembly had lowered the tracks’ tax burden by two-thirds, that did not satisfy them, hence the Trust Fund. Sixty percent of its proceeds is distributed to the tracks as purses and forty percent as an operating subsidy; ironically, the successful tracks receive the largest subsidies.

Days after the 2006 Act became law, four Chicago area casinos filed suit in Illinois state court asserting that the Act was an unconstitutional taking because it forced them to subsidize their competitors and did not serve a “public use.” Although the trial court struck down the Act on state law grounds, it required the casinos to continue their daily contribution to a protest fund which, by the time the litigation is completed, may exceed $100 million. Illinois and the casinos both appealed directly to the Illinois Supreme Court.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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