Alan Balch - Federalism Redux

As if we in American racing weren’t already facing serious threats to our very existence as a major sport, and an exceptionally elaborate interdependent business, now we’re also an example of the present national political dysfunction and irrationality. Just one more sharp dagger.

Over a half-century ago, I spent a previous lifetime in academia—studying government and political philosophy, with an emphasis on American political enterprise and evolution. When I joined Santa Anita, I never thought that I would one day witness at the racetrack the fundamental contradictions of the American founding! 

But here we are, courtesy of the Horseracing Integrity and Safety Authority (HISA). As you are probably aware, this addition of national government oversight to Thoroughbred racing, which had previously been the province of state-by-state regulation, came by way of its sudden inclusion in a must-pass federal budget bill in the waning days of the Trump presidency. Courtesy of Republican Party Leader Senator McConnell, of Kentucky—whose patrons The Jockey Club and Churchill Downs advocated for it.

There is little doubt that the enabling legislation wouldn’t have been adopted had it been considered on its own merits, absent the cover of the required federal budget.

In any event, the Tenth Amendment to the United States Constitution, adopted at the founding, reads in whole, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Since racing had always been regulated by the individual states where it had been held (for nearly 100 years, or even more in some states), its sudden impending regulation by the federal government was bound to raise serious issues of “federalism.”

Way back when American schools required Civics and American Government to be taught—rigorously—we all were expected to learn the basic founding stories: about the original thirteen colonies of Great Britain, the American Revolution, and the Articles of Confederation which preceded the Constitution. Suffice it to say that the age-old tensions between the prerogatives and responsibilities of the individual state governments and those of the national (“federal”) government underpin all of American politics.

Federalism, our system of government whereby the same geographic territory is under the jurisdiction of multiple layers of authority, is at once the genius of our American democratic republic and its potential debilitating weakness. Such a structure requires cooperation—and repeated compromise. It’s been nearly 250 years since our Declaration of Independence. To this day, our founding tensions underlie virtually all our politics and governments . . . from local school boards to town and city councils, to counties, states, and the federal government.  

So, is it any wonder that when consensus in our complex, diverse nation is still so difficult to achieve on fundamental issues of human rights, race and voting procedures, our own (trivial?) questions of how horse racing is to be governed hardly have merited a glance?

Irony has heaped upon irony in racing’s current regulatory quagmire. The contemporary political party that seems to believe in the supremacy of states’ prerogatives as to critical issues of voting and personal behavior—the opposite one from the party that used that same banner to fuel the secession of Southern states igniting the Civil War in 1860—has abandoned it when it comes to racing oversight! Its leadership believes the heavy hand of the federal government is too weighty for issues of life, death and voting, but necessary to wield on regulating racing.

Thus far, trying to use federal law to serve the cause of regulatory uniformity nationwide has resulted in the opposite, at great expense, monetary and otherwise. The “otherwise” may well include sacrificing basic tenets of due process of law, such as the presumption of innocence for those accused of misbehavior.

And all of this was so unnecessary. The Jockey Club and the other prime movers of HISA should have simply engaged in good faith at the outset with the Association of Racing Commissioners International (ARCI). Its model rules have been developed over decades of interfacing with state racing boards and the Racing Medication and Testing Consortium, which includes trainer and owner representation. With that approach, the issues now plaguing all of us would be much diminished, if they still existed at all. Bottom line, nobody in the sport wants cheaters. But a relatively few in the sport, it would seem, do still want to decide for and dictate to all the rest of us. Does The Jockey Club actually want a more rapidly shrinking sport? It’s entirely possible, perhaps probable, with all the foreseeable angst. 

HISA leadership professes to be open, transparent and willing to consider improvements. If that is so, why won’t it immediately understand the serious threat of “provisional suspensions” to every trainer and owner, and the near-total lack of transparency and timely response when it comes to cases of obvious environmental contamination? That very concept of “provisional” suspension, which came from international non-racing equestrian sport regulation, is indicative of a blindness to the realities of racing which would have never occurred were the ARCI model rules adopted.

Instead of using its expensive public relations machine to continue sending repeated self-serving, congratulatory messages to a skeptical community, HISA should tell all the rest of us how we can go about expeditiously amending its rules to provide for practical, fair and truly transparent governance.

Publius (the pseudonym for James Madison in Federalist Paper #47) wrote this in 1788: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” 

As it stands now, HISA’s authority, rule-making, disciplinary practices and governance are perilously close to just that destructive.

WIth absent judicial intervention, only HISA itself can open the door to necessary reform—before it’s too late.