{"id":424,"date":"2026-07-15T10:07:39","date_gmt":"2026-07-15T10:07:39","guid":{"rendered":"https:\/\/frontierhousingreport.com\/?p=424"},"modified":"2026-07-15T10:07:39","modified_gmt":"2026-07-15T10:07:39","slug":"the-cftcs-word-games-legalizing-gambling","status":"publish","type":"post","link":"https:\/\/frontierhousingreport.com\/?p=424","title":{"rendered":"The CFTC\u2019s Word Games Legalizing Gambling"},"content":{"rendered":"
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So far in his second term, President Trump has only filled one of five commissioner seats on the Commodity Futures Trading Commission (CFTC). By complete coincidence, that commissioner, agency chair Mike Selig, happens to be an evangelist for prediction markets like Kalshi and Polymarket\u2014both advised by Donald Trump Jr.<\/p>\n

Read more Rising Momentum for Another Progressive Champion<\/a><\/p>\n

Sports betting and other gambling products masquerading as \u201cevent contracts\u201d have exploded since Trump regained office, entirely thanks to the administration\u2019s control of a radically transformed CFTC. The unassuming regulator has become the all-powerful patron of prediction markets, ignoring the derivative products the agency is supposed to be overseeing and dedicating its time and resources to unilaterally legalizing gambling in all 50 states, whether the states like it or not.<\/p>\n

More from Eleanor Davis-Diver<\/em><\/strong><\/p>\n

The CFTC has been engaged in a legal struggle with various states over regulatory jurisdiction, which will likely lead to a showdown in the Supreme Court. Following the lead of the industry, the CFTC has argued that federal commodities law preempts any state gambling laws and gives it exclusive authority over event contracts on prediction markets.<\/p>\n

The latest move in this fight is a fantastical bit of legal gymnastics performed in a released last month. The 66-page document is almost entirely dedicated to twisting the meaning of specific words and phrases while employing a series of logical leaps to rewrite the law and the agency\u2019s own regulations, while parroting industry talking points differentiating the sports-based contracts on prediction markets from what they plainly are.<\/p>\n

\u201cThis is one of those issues where, if you know a little bit about a topic and you look at it, you\u2019re like, that\u2019s gambling,\u201d said Better Markets policy director Amanda Fischer, who previously worked as the chief of staff at the Securities and Exchange Commission. \u201cAnd then all of these very well-paid lawyers are trying to create very strained interpretations of the law to arrive at the outcome they would like.\u201d<\/p>\n

THIS PARTICULAR PERFORMANCE CENTERS<\/strong> around section 5c(c)(5)(C) of the Commodities Exchange Act (CEA), or the \u201cSpecial Rule,\u201d as the CFTC refers to it. The Special Rule was added after the 2008 financial crisis to \u201cprevent the creation of futures and swaps markets that would allow citizens to profit from devastating events and also prevent gambling through futures markets,\u201d according to then-Sen. Blanche Lincoln (D-AR), one of its authors, in a 2010 colloquy discussing the amendment. Specifically, the rule gave the CFTC the authority to prohibit contracts based on \u201cgaming\u201d as well as other activities enumerated by Congress, including war, assassination, terrorism, and \u201csimilar activity determined by the Commission, by rule or regulation, to be contrary to the public interest.\u201d<\/p>\n

The CFTC, then led by chair Gary Gensler\u2014who provided technical assistance in authoring the provision\u2014adopted Rule 40.11 to implement the Special Rule. Rule 40.11 is, in essence, a per se<\/em> prohibition on the trading of event contracts based on or involved with any of the enumerated activities, including gaming. To quote a 2021 public statement from then-CFTC commissioner Brian Quintenz, now the newly announced senior adviser of the Coalition for Prediction Markets, \u201cthat means game over.\u201d<\/p>\n

Not even the most fervent prediction market advocates can deny that the clear-as-day ban on \u201cgaming\u201d contracts included betting on sporting events. Yet in litigation with President Biden\u2019s CFTC, Kalshi, by far the largest prediction market in the United States, argued that there was no per se<\/em> ban in the Special Rule and that the commission was required to both determine involvement in an enumerated activity and then in addition<\/em> determine if the contract was \u201ccontrary to the public interest\u201d before terminating trading. It should be added that in this lawsuit, Kalshi also conceded: \u201cCongress did not want sports betting to be conducted on derivatives markets, as the legislative history directly confirms.\u201d<\/p>\n

As soon as the second Trump administration began, the CFTC didn\u2019t hesitate to adopt the argument most favorable to Kalshi\u2019s business model. The agency ceased enforcement of the law entirely, even while Rule 40.11\u2014per se<\/em> ban and all\u2014remains in effect.<\/p>\n

The new proposed rulemaking insists that the Special Rule actually requires a \u201cthree-step sequence\u201d before the CFTC can take down an event contract listing, in part to retroactively justify the failure to enforce its own regulations. The sequence unfolds as follows: First, the agency will determine whether the listing is an event contract. Second, it must find that the event contract actually \u201cinvolves\u201d one of the enumerated activities. And then it can investigate whether a contract is \u201ccontrary to the public interest.\u201d<\/p>\n

For this task, the CFTC turns to Section 3 of the CEA, which states, \u201cThe transactions subject to this Act \u2026 are affected with a national public interest by providing a means for managing and assuming price risks, discovering prices, or disseminating pricing information.\u201d This fits with the original purpose of derivative markets, which have their basis in agriculture. A grain purchaser used futures markets to hedge against the risk of a bad harvest or unforeseeable disaster, locking in their prices. The other function was to discover and disseminate information on the price of an underlying commodity. So if a grain farmer had only his small, local market to rely on when determining how to price his crop, grain futures gave him a more accurate benchmark.<\/p>\n

Gensler reiterated this in an in one of the many legal cases about prediction markets. \u201c[T]he structure, history, and purpose of federal commodity derivatives markets and laws have nothing to do with sports betting,\u201d he wrote. \u201c[N]obody involved in Dodd-Frank\u2019s passage called for preempting states or their gaming commissions\u2019 authorities over sports betting \u2026 If Dodd-Frank had preempted the states on sports betting, it would have been one of the biggest stories about Dodd-Frank at the time. But nobody ever mentioned it.\u201d<\/p>\n

The industry claims their prediction markets should have the same status as commodity trades operating in the \u201cnational public interest\u201d because they too allow participants to hedge risk or discover prices. While this sounds insane, it\u2019s exactly the same argument Selig and the CFTC make in their proposed rulemaking.<\/p>\n

The proposed rule contends that all of the potential hedging and price discovery uses for prediction market contracts are impossible to, well, predict. \u201cThe use cases for prediction markets,\u201d as Selig claimed in an X post earlier this month, \u201cwhile seemingly narrow in their nascent stages, promise to give rise to myriad products and services that help Americans hedge risk and aggregate information.\u201d<\/p>\n

To many consumer advocates and legal experts, that\u2019s not a very convincing argument. \u201cJust because someone could sit and brainstorm the most ridiculous hypothetical as to why someone might need this contract to manage the risk, that\u2019s not a defense,\u201d Fischer said.<\/p>\n

Read more Monitor Amok!<\/a><\/p>\n

In one particularly imaginative line of reasoning, the proposed rulemaking applies this broadened definition of price discovery to sports, arguing that, because sports broadcasts and stadiums are \u201ceconomic enterprises,\u201d a market prediction for the outcome of a single game can be economically useful. How exactly the score of a mid-season Knicks game could aid a commercial developer in making economic decisions about, say, investments around Madison Square Garden is unclear. It\u2019s quite a leap from point A to point B.<\/p>\n

You see the absurdity of the CFTC\u2019s position by looking at which kinds of bets it says are allegedly in the public interest and which are not. Prediction markets cannot take bets on Little League games, the proposal states. But it can bet on meaningless games between teams out of the playoffs at the end of the season. Prediction markets cannot handle bets on the outcome of a particular pitch or the likelihood of a player injury or an in-game fight. But how many points a player scores in a game has a national public interest, apparently.<\/p>\n

But even after making this leap, Selig and the CFTC still had a problem. \u201cThat public good was already being produced on traditional gambling sites,\u201d law professor Ilya Beylin explains. \u201cSo the question for [the CFTC] was well how do we justify prediction markets on sports? What benefit are prediction markets providing that the existing gambling outfits are not providing?\u201d<\/p>\n

The agency found a solution by further expanding its definition of price discovery usefulness to information sportsbooks don\u2019t typically provide\u2014the volume of betting. \u201c[T]he price discovery function of event contracts is not limited to how the market participants buying and selling event contracts use the prices as guides to how likely events are to occur,\u201d the proposal argues. \u201c[A] sufficient volume of event contracts \u2026 can serve as price discovery tools by indicating what the market or the general public thinks about the underlying events or issues.\u201d<\/p>\n

It is hard to imagine what real information an economic actor could glean from the volume of trades in a given game. It\u2019s not that hard to tell that American sports fans are more interested in the National Football League than Major League Soccer. And while interest in one game or another might have some impact on what users choose to bet on, there are other, arguably more important factors, like how they see the odds and the level of risk associated with making the bet. During the World Cup, for example, the most trading volume was on an almost completely meaningless group stage game between the U.S. and Turkey. If someone were to somehow make a financial decision based on that information, they would be led terribly astray.<\/p>\n

This is just one example out of a proposal full of bizarrely constructed arguments to justify allowing gambling products on derivatives markets. But squabbling over wordplay and legal technicalities misses the point, argues Fischer. \u201cThere are some legal questions and maybe reasonable people can differ around the edge on some of the applications of these cases,\u201d she said. \u201cBut the CFTC is so far afield of what the original intent of what these markets should be for.\u201d<\/p>\n

ONE OF THE \u201cPUBLIC INTEREST\u201d CONSIDERATIONS<\/strong> notably missing from the CFTC\u2019s reasoning is why users would want to bet on sports in the first place. \u201cThere\u2019s pretty substantial medical and academic literature on addiction problems and people with mental health vulnerabilities engaging in excessive gambling,\u201d according to Professor Beylin. \u201c[The CFTC] didn\u2019t identify the social harms when it promulgated its release,\u201d he said. \u201cAnd those are real harms.\u201d<\/p>\n

A study released last week by the Roosevelt Institute found that ordinary people using Kalshi lost an estimated $583.5 million on the platform from July 2021 to May of this year. Over two-thirds of that money, $371.6 million, was lost on sports wagers.<\/p>\n

Whether or not prediction markets provide information that sportsbooks lack, and whether or not that information is at all valuable for the financial decision-making of market actors, it does little to distract from the creature walking and quacking like a duck in plain view. And no one, not even the platforms themselves, truly believe it\u2019s not a duck. Just last year, Kalshi papered bus stops and social media feeds around the country with a series of advertisements proudly declaring sports betting \u201clegal in all 50 states.\u201d Kalshi and Polymarket have even both started offering \u201ccombos,\u201d which provide the same opportunity that sportsbooks offer to gamblers with multi-leg parlays.<\/p>\n

The future that Sen. Lincoln warned her colleagues about back in 2010 is now here. \u201cThe Commission needs the power to, and should, prevent derivatives contracts that are contrary to the public interest because they exist predominantly to enable gambling through supposed \u2018event contracts,\u2019\u201d she said in the same colloquy mentioned above. \u201cIt would be quite easy to construct an \u2018event contract\u2019 around sporting events such as the Super Bowl, the Kentucky Derby, and Masters Golf Tournament. These types of contracts would not serve any real commercial purpose. Rather, they would be used solely for gambling.\u201d<\/p>\n

This year, Kalshi took in over $1 billion worth of trades on event contracts related to the Super Bowl. The Masters generated more than $545 million in event contract trading for the platform. All told, sporting events back around 90 percent of activity on the platform. For Sen. Lincoln\u2019s part, watching the CFTC bastardize the law she helped write to allow the very thing she wanted to stop, she ought to be outraged. And maybe she was before Kalshi retained the services of her lobbying firm, a privilege for which the company has paid almost half a million dollars since 2024. Last year, she filed a comment letter to the CFTC encouraging the approval of sports-based event contracts.<\/p>\n

Regardless of Lincoln potentially switching sides, some courts are backing up her previous position. Last week, a federal court in New York ruled that state gambling regulations apply to Kalshi event contracts. This will almost certainly be appealed to the Supreme Court.<\/p>\n

\u201cThere\u2019s a lot of powerful people with money that have a lot riding on this,\u201d said Fischer. \u201cThere\u2019s a lot of money to be made circumventing state gambling laws.\u201d<\/p>\n

Read more Organized Money: The Supreme Court Gives Wall Street Its Own Regulator<\/a><\/p>\n<\/div>\n


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