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Roll out the red tape

11/19/2013

The Feds busted Marty the Magician. He pulled an illegal rabbit out of his hat.

To be specific, according to a story in The Washington Post, Marty Hahne violated federal law by not having a license for his three-pound bundle of abracadabra named Casey. But that was just the start of Hahne's trouble. Laws and regulations, it seems, are like those colorful handkerchiefs hidden up a magician's sleeve: Once one appears, they just keep coming.

This summer, in a letter, the Department of Agriculture informed Hahne that he was required to have a "disaster plan" for his rabbit -- you know, something explaining his emergency preparedness in case of fire, flood, earthquake or broken brim. The letter began "Dear Members of Our Regulated Community," according to the Post, and went on to explain that Marty the Magician also had to inform the USDA whenever he took Casey out of town.

That's paternalism all dressed up as government, denying freedoms and rights, imposing restrictions and requirements, on the premise that it can make decisions for people better than they can for themselves. The premise, as government relentlessly demonstrates and recent events emphasize, is only dubious on those rare occasions when it's not also disastrous. But the arrogance of paternalism has become relentless, too, and it urges the federal government to extend its hegemony over the states as well. So now Congress will suggest it knows what's best for horse racing.

At a cursory first glance, the legislation might seem more promising than objectionable. After all, who's not in favor of integrity and safety?


Thursday morning, in the nation's capital, a House Subcommittee on Commerce, Manufacturing and Trade will conduct a hearing on the Horse Racing Integrity and Safety Act. At issue is whether "an independent anti-doping organization," should be entrusted with "developing, publishing, and maintaining rules with respect to substances, methods and treatments … implementing programs … and excluding" violators from participation. In other words, the bill could authorize the U.S. Anti-Doping Agency (USADA) of Colorado to regulate medication and treatment at the nation's racetracks, to develop and enforce rules, to establish guidelines, and to issue penalties. The legislation also bans all race-day medication, with a phasing out of furosemide, or Lasix, over two years.

At a cursory first glance, the legislation might seem more promising than objectionable. After all, who's not in favor of integrity and safety? Moreover, the legislation will pass the big stick from local racetracks and state regulators, who have been far too lenient with the lowdown and the loathsome, to a less sympathetic authority.

Beyond that, though, the legislation creates many more problems than it solves. It's more boondoggle than boon. Even when setting aside for the moment the debate surrounding furosemide, the numerous reasons to oppose the bill overwhelmingly outweigh its merit.

First of all, the legislation isn't necessary. For all sports, illicit drugs and medication abuse represent a serious problem that's exacerbated by public perception. That's especially true in horse racing, largely because the sport has failed for decades to educate its fans, its regulators, and its media. And so at racetracks everyday, two-dollar bettors who tear up their tickets blame cheaters and illicit drugs rather than bad handicapping for their failures.

In 2006, before Nick Saban arrived, the Alabama football team went 6-7, and the NCAA later vacated the victories. Since then, Alabama has gone 71-7, with three national titles. So Nick Saban is widely regarded as brilliant. A coach who turns a team around is called a genius; a trainer who turns a horse around is called a crook. The difference is part perception, part ignorance. Many of horse racing's critics, especially some in the media whose animus far exceeds their understanding, focus unwaveringly on this medication issue, and since they look only for problems, they see only problems, even some that aren't there.

Paternalism assumes people are too stupid and irresponsible to decide anything more serious than which TV show to watch. H.R. 2012 assumes horse racing and its state regulators either are too stupid or, more likely, too corrupt to make any progress in the very complex area of medication reform and regulation. But, in fact, horse racing has made significant progress, thanks largely to the Racing Medication & Testing Consortium. The RMTC has implemented the Quality Assurance Program and laboratory standards and has funded groundbreaking research to develop new detection methods for illicit drugs and regulations for therapeutic medication. Anabolic steroids have been banned. The sport has tossed some, but not all, of its most vile garbage, specifically those trainers who used dermorphin. Nine states have lowered their threshold for phenylbutazone, some have moved back the clenbuterol withdrawal time dramatically, and the RMTC recently issued recommendations that could have a profound impact on the use of corticosteroids.

Horse racing moves slowly, but on this issue at least it's moving in the right direction. Could the USADA, or any other organization that has no expertise or experience in horse racing, have accomplished as much? Will the sport's progress be compromised as some "anti-doping organization" assembles the necessary expertise and attempts to educate itself on the intricacies and complexities of the sport? And just how long will that take -- two, or three, or maybe 10 years?

Examined in all its regalia, the legislation says its purpose is to "improve the integrity and safety of interstate horseracing," but admits there are "other purposes." Whenever anybody or anything in Washington admits to other, unspecified purposes, alarms should sound and anxiety follow. In this case, anxiety might jump the curb and rumble in the general direction of panic when the legislation reveals its funding plans.

Basically, this independent "anti-doping organization" will have a license to hold the racetracks hostage, or at least the larger racetracks. They will have to meet the organization's standards and demands in exchange for the right to export their races for interstate wagering: "On and after the date of the enactment of this Act, a host racing association may conduct a horserace that is the subject of an interstate off-track wager … only if consent is obtained from the independent anti-doping organization." And consent depends on compliance and payments. Then more payments.

But that's just the first handkerchief to come out of the sleeve. Could this "anti-doping organization" pass regulations requiring, for example, synthetic surfaces everywhere? Air-conditioned stalls? Disaster plans? Has anxiety jumped the curb yet?

Then there's the regulatory imbroglio and the medley of ineptitude that this overreaching, paternalistic legislation almost certainly will create. This has the potential to be sport's version of the Affordable Care Act.

Then there's the regulatory imbroglio and the medley of ineptitude that this overreaching, paternalistic legislation almost certainly will create.


Already horse racing is the most regulated sport in the country. Has all this regulatory oversight hindered or helped racing? And will another layer of regulation improve anything, especially if that extra layer of oversight belongs to the federal government?

Before answering, consider the country's green energy policy, which requires oil companies to blend millions of gallons of corn ethanol into gasoline -- so much ethanol, in fact, that fuel, not food, has become the primary use for corn in this country. Iowa caucuses aside, the ethanol policy was intended to reduce global warming, but it could be having the opposite effect, according to a recent Associated Press story.

With the expansion of the Corn Belt over the last five years, more than 1.2 million acres of grassland have been lost, according to the AP, as well as 5 million acres of farmland that once had been set aside for conservation. And, of course, it gets worse. The National Highway Safety Administration has required the auto industry to get fuel economy up to 54.5 miles per gallon by 2025. As cars become more efficient, fuel will have to contain more and more ethanol to keep pace with the Renewable Fuel Standard, and even the Environmental Protective Agency has admitted that higher ethanol levels could damage engines, and so the regulatory maelstrom widens. And, oh yes, the price of corn has more than doubled.

Consider, too, the federal requirement that railroads install the Positive Train Control on their tracks and in their locomotives by 2015. This will cost the railroads an estimated $15 billion but, according to the Federal Railroad Commission, prevent only 2 percent of the collisions. And reflect just a moment on dishwashers. The Department of Energy admits that its Dishwasher Efficiency Standards -- yes, there are such things, with regulations multiplying like, well, rabbits -- don't improve efficiency even though they increase the price of dishwashers.

Think for a moment about this staggering number: 1.8 trillion. That's the annual cost in dollars of regulations, or $14,768 for every household, according to the Competitive Enterprise Institute. And ponder this bureaucratic nugget: Last year, for every law there were 29 new regulations.

Remember the IRS scandal, the fiasco in rolling out the Affordable Care Act and Marty the Magician's illegal rabbit in need of a "disaster plan," and then ask yourself this: Do we really want the federal government involved in horse racing?