Shortly afterwards, the CFTC adopted regulations to implement the CEA’s Special Rule. Those regulations explicitly prohibit the listing and trading of any event contract that “involves, relates to, or references . . . gaming, or an activity that is unlawful under any State or Federal law.” 17 C.F.R. § 40.11(a)(1). In promulgating § 40.11(a)(1), the CFTC therefore made the categorical determination that event contracts involving these specific activities are contrary to the public interest. 4 Indeed, when announcing its rule, the CFTC clarified: [I]ts prohibition of . . . “gaming” contracts is consistent with Congress’s intent [for the CEA’s Special Rule] to “prevent gambling through futures markets” and to “protect the public interest from gaming and other event contracts.” Adopting Release, 76 Fed. Reg. 44,786 (July 27, 2011) (citations omitted). Nothing in any of this language preempts, amends, diminishes, or even conflicts with IGRA. If anything, the statutory and regulatory language above 4 This is reinforced by positions taken by both current and former CFTC Commissioners. See Statement of Commissioner Caroline D. Pham (Aug. 26, 2022), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement082622 (“In promulgating [§] 40.11(a)(1) pursuant to Section [7a-2](c)(5)(C), the [CFTC] determined that an event contract that ‘involves, relates to, or references’ . . . gaming, or illegal activity is prohibited because it is contrary to the public interest.”); Statement of Commissioner Brian Quintenz (Mar. 25, 2021), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/quintenzstatement032521 (“In 2012, the [CFTC] promulgated Regulation 40.11 implementing this section of the statute. This regulation states that, “pursuant to” [7 U.S.C. § 7a-2](c)(5)(C), the [CFTC] is prohibiting all event contracts that involve the enumerated activities above.”).
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