Flatter: Critics of federal regulation should answer this call

Let’s start with one important fact. The Horseracing Integrity and Safety Authority is not going away next week. 

Yes, the impact of a November court ruling that said HISA was unconstitutional will be felt Tuesday. Barring some sort of legal intervention in the next four days, HISA will be at least temporarily out of business in Texas, Louisiana and Mississippi. That may not last long.

Make no mistake. HISA’s primary role right now is not so much writing rules and enforcing regulations. It is all about defending its very being.

With no fewer than five lawsuits either in progress or brewing around the country, HISA is being attacked on all flanks. What remains troublingly uncertain, though, is not so much where HISA is going but where we are headed. We being racing. Everyone from its state fiefdoms and track bosses to jockeys and trainers and veterinarians.

HISA was born not so much in Congress as it was in the ubiquitous desire to put all of racing’s regulations into one rulebook that everyone in every region could follow and obey. The problem was and continues to be that there was no genie in that bottle to grant those idealist wishes. It was more like Pandora’s box. 

One the one hand there is HISA CEO Lisa Lazarus, who offers obligatory declarations of optimism and unrequited calls for trust. She did it again Thursday in what was, for a refreshing change, on the record in a teleconference with a few racing journalists. At least her part of it was on the record. Other voices on the call were “on background,” two go-to words in HISA’s arsenal.

On the other hand, there is a mosaic of HISA critics who range from those craving meaningful dialog and even reasonable regulations to hard-liners who stubbornly want the status quo, even if it means racing devolves into the same anarchy as the wild, wild west. Or as the NIL era of college sports. 

All the while, the wheels of justice slowly grind away. So we occupy our time listening to HISA say what it is doing right while opponents scold it for what it has done wrong.

In her conference call, Lazarus talked about “HISA’s policy with regards to open records and what we disclose and what we don’t. … We still need to figure out where we stand between a public and private entity.”

Say what? I believe this is the same leader whose pinned post on Twitter still says, “Bringing unprecedented safety, transparency and integrity to horse racing is what unites us.” 

The perception that HISA has been anything but transparent has empowered the forward momentum of lawyers trying to bring down a regulatory baby that is not even a year old.

This strategy was at the root of the lawsuits against HISA. The ones that challenged its legality on the basis of Article 1 of the Constitution. That is the one that says anyone carrying the water for Congress better be toting a government badge, too. In November the Fifth Circuit Court of Appeals decided HISA failed that. That it was getting too big for its britches.

That was why Democrats and Republicans on Capitol Hill slipped a legislative patch for HISA into the $1.7 trillion federal budget that President Biden signed into law last week.

“We were delighted that Congress took the initiative to essentially correct the issue that the Fifth Circuit (Court of Appeals) identified with the constitutionality of HISA,” Lazarus said.

HISA’s critics do not buy it. They have said and will continue to say that while the government remedy last week may have given the Federal Trade Commission, a bona fide government agency, more encouragement to rein in HISA, it really had no practical effect. That HISA continues to be an illegal straw stirring the drink.

As lawyers on either side rack up billable hours arguing this, it will be left for judges to decide HISA’s ultimate fate. Since that will not happen anytime soon, we carry on.

While its constitutionality has been mooted in one court and hangs by a thread in at least two others, HISA moves forward with drug and medication regulations that would have kicked in this week if not for the murky legal waters.

It has come to light that the FTC already is at work on approving or rejecting the final rules, maybe within a matter of a few weeks. This will come as news to many racing constituents who have been waiting to see this process in all its transparency. They will say they have been urged to keep looking to the HISA website for updates on those very rules – and that they have found nothing. It is like answering the front door every 10 minutes because the doorbell is broken – and finding no one there.

Which brings us to the money.

“We have a full budget that’s available on our website for 2023,” Lazarus said. “Some of that is changing a little bit. Given the legislation and the fact that the FTC didn’t approve the anti-doping rules, we made some adjustments.”

A look at that $72.5 million budget, though, revealed only 22 general items and no specifics on a whopping one page of details. Like “Technology, $802,109.” What technology? Or “Supplies, $176,150.” Does that include ink cartridges for the printers in Kentucky? And how about “Salaries, $4,106,500.” Who and how much?

Critics say the website has been scant with necessary details almost since it was established last year. To their credit, the HISA folks said Thursday they are aware of some glitches and omissions, and they are working on them. But it still comes down to what they choose to report and not to report.

Of the three states that are due to be free of HISA’s regulatory burden Tuesday, Texas is the one that has been loudest to stand on longstanding state law and declare, “You’re not the boss of me.”

“At the time those (state) laws were written, there was no federal authority,” Lazarus said. “We think the law is extremely clear that given there is now a federal law, the federal law pre-empts. That’s been the view that essentially every other racing commission has accepted.”

Was that not the very bulwark of the nationwide ban on sports gambling? Remind me how that has worked out for 33 states plus D.C. in the past five years.

Somewhere in all this mess lies a spirit of compromise, an archaic word that became obsolete in Washington at least a generation ago. Capitol Hill, though, also provides an argument that works well here.

Do we remember how the debate over Obamacare included the call for its opponents to come up with a better idea of their own? Therein lies the challenge for racing’s influential constituents to craft.

Yes, the sport already squandered every previous chance to do just that. When it failed, and when horses died at Santa Anita, and when an FBI sting and not racing regulators brought down Jason Servis and Jorge Navarro, Congress jumped in feet first. If racing’s own curators could not clean up the mess, leave it to the House and Senate to slide its own memos between the reams of paper in the last two end-of-term budgets.

HISA’s critics have been loud and clear. HISA itself has been loud and, well, loud. Its desire to rid the sport of its bad actors really has manifested itself with little more than a bunch of bureaucrats who are huddled around video replays counting how many times jockeys use their crops on horses.

To merely point out HISA’s missteps, though, without coming up with a better plan is like adding another scoop of wrong to try and whip up a batch of right.

If HISA will not bring racing’s existing establishment into meaningful conversations, then racing’s existing establishment should heed the call to band together and come up with an alternative plan of its own. A sort of revolution, hopefully without the violence that happened two years ago right now.

Bring the federal racing authority a better idea. With HISA at a legal crossroads and the benefit of the time it takes courts to do anything, this may be the game’s last best chance to get its act together. Hopefully, out in the open.