Congress will bolster the Federal Trade Commission’s (FTC) oversight of the Horseracing Integrity and Safety Act (HISA) in a bid to satisfy constitutional flaws as part of its $1.7 trillion spending bill. A vote is expected this week.

The spending bill proposes to amend Section 1204(e) of HISA to allow the FTC to “abrogate, add to, and modify the rules of the Authority.”

Sen. Mitch McConnell, R-Ky., pushed the amendment after the Fifth Circuit Court of Appeals ruled Nov. 18, 2022, that HISA was unconstitutional because it delegates legislative authority to a private organization and individuals. The Horseracing Integrity and Safety Authority, a private organization, is responsible for implementing anti-doping and racetrack safety protocols, regulations and penalties. While the FTC has the authority to accept or reject proposed rules from the Authority, it could not amend them.

The move was met with concern from the National Horsemen’s Benevolent and Protective Association (NHBPA), which filed the lawsuit that prompted the ruling.

“I am disheartened that, once again, legislation governing the horseracing industry was crafted in the dark of night with no public hearings and virtually no industry input,” according to a statement from Eric J. Hamelback, NHBPA CEO, and Peter Ecabert, the organization’s general counsel. “You cannot fix a fundamentally broken law with one sentence.”

Hamelback and Ecabert maintain that the amendment fails to address other constitutional concerns such as a non-federal private entity granted the power to levy taxes, anti-commandeering of states’ powers, lack of due process, and violations of the Administrative Procedures Act.

“This amendment does not address other substantive issues, nor does it address the funding disaster that remains in the flawed Act,” according to the statement. “It is clear from the issues raised in the various lawsuits contesting the legal validity of HISA that this one-sentence ‘fix’ does not alleviate the glaring constitutional infirmities this law has created.”

The NHBPA vows it will continue to fight HISA in court.

“This amendment does not address other substantive issues, nor does it address the funding disaster that remains in the flawed Act,” according to the statement. “It is clear from the issues raised in the various lawsuits contesting the legal validity of HISA that this one-sentence ‘fix’ does not alleviate the glaring constitutional infirmities this law has created.”

HISA, passed as part of the Dec. 21, 2020, COVID-19 stimulus bill, was a response from federal lawmakers after a series of doping scandals and equine racetrack fatalities.

Attorneys general from nine states urged McConnell to bypass correcting HISA’s constitutional flaws during a lame-duck session. Rather, they advise a deliberate approach to regulating racing.

“Any further legislation regarding HISA should proceed through the ordinary course of deliberate consideration by the Senate Commerce Committee and the House Energy and Commerce Committee,” according to a letter signed by the top law enforcement officers in Louisiana, Arkansas, South Carolina, Indiana, Ohio, Texas, Mississippi, Iowa and Oklahoma. “On the impossible timeline of the Defense Spending Authorization Act, due care cannot be given to ensuring any amendments to HISA respect the founders’ design and allow states to retain control over an industry they successfully developed and regulated for centuries.”

In addition to the HISA amendment, the omnibus bill allocates $4,096,000 to enforce the Horse Protection Act of 1970.