Some would argue that in enacting the Gaming Law as they did, the General Assembly went too far. I think we are about to find out. If anyone has actually read the entire Gaming Law, you will easily notice that aside from paying an application fee and completing the requisite packet and filing requirements, there are no mandatory standards by which the Gaming Commission actually determines who gets a license and why. While the issue of award has not received as much attention as zoning controls, I assure you, it is perhaps even more important for a number of reasons.

First, the way the law is presently written, the Commission has no standards by which to make their decisions in a process that is inherently competitive. There are more applicants than licenses and someone has to lose. The questions that remain, who and why? These are not addressed in the Gaming Act. Rather, lip service is paid to some considerations, like safety and welfare, but so generally that such considerations are meaningless. Thus, even with local zoning controls, the Commission still can determine the health, safety and moral issues involved, or choose to ignore them.

Second, as stated above, the process is competitive. There are no bones about this. It is competitive on two levels, who gets picked and who makes money. Without standards, how can the Commission make an appropriate decision. They cannot. There are, in essence, limitless considerations to be made. Considering some of the heavy hitters involved and the money involved, how can that be a good thing.

Last, and perhaps most importantly. If we like an accountable democracy, we need standards. Agencies and commissions are not allowed to run around with complete discretion. In the governmental context, they can execute, but cannot create public policy. This my friends is the role of the legislature. Without such controls, we have both a separation of powers and an accountability issue. Quite simply, if and when Casinos are a complete disaster, will it be satisfactory when our state representative and politicians point to an unaccountable, unelected commission. Well, we should not even give them the opportunity (and, under my view of the law, they shouldn't get one either).

This morning, in response to these and other concerns, Casino Free Philadelphia, The Multi-Community Alliance, NABR, among other parties, filed a lawsuit in the Pennsylvania Supreme Court that seeks to find certain portions of the Gaming Act void as unconstitutional. More specifically, that the Gaming Act contains an impermissible delegation of legislative authority to the Gaming Board. In English, the suit argues that considering there are more applicants than potential licenses, the selection process is a competitive one. Based upon a provision in the Pennsylvania Constitution regarding legislative power, the General Assembly must give appropriate guidance and standards to governmental agencies and commissions so that the determinations made by these bodies are not arbitrary and that discretion is limited. This well established rule, called the "non-delegation" rule, embodies the principle that only elected officials can make actual policy decisions--not agencies who just implement. Without such a rule, unelected administrative agencies, boards and commissions, like the Gaming Commission, would make decisions sans electoral accountability.

At first blush, this argument may seem boring. I assure you, it is not. It has already been successful in the Gaming context, related to zoning control in the Pennsylvanians Against Gaming lawsuit. The attorneys are Irv Ackelsberg and John J. Grogan of LANGER & GROGAN, P.C. Let's wish them luck! Hopefully, I will be able to find a link to it. In the meantime, please stay posted.