CFTC Attorneys Argue Federal Agency Isn’t An Online Casino Regulator

Posted on: January 20, 2025, 10:33h. 

Last updated on: January 20, 2025, 10:33h.

Attorneys with the Commodity Futures Trading Commission (CFTC), a federal independent agency of the United States government that regulates derivatives markets, including event contracts like the ones offered on Kalshi, say election betting on such platforms has forced the organization to become a gambling regulator.

CFTC Kalshi election betting politics
Attorneys with the Commodity Futures Trading Commission say election betting should remain prohibited in the United States. A lawsuit about the matter is ongoing in a federal appeals court in Washington, DC. (Image: Casino.org)

In September, a federal judge in D.C.’s District Court sided with Kalshi in its lawsuit against the CFTC.

The online peer-to-peer betting exchange allows users to buy and sell shares of outcomes on an array of matters from culture and climate to economics and politics. It’s the latter that the CFTC has taken issue with, as agency officials say Kalshi is essentially running gambling odds regarding elections and political events.

The reason we’re here today is because a federally regulated exchange has turned itself into an online casino for betting on elections. The question for the court, though, is not whether that’s right or wrong, but whether the CFTC can even evaluate that activity,” Rob Schwartz, the CFTC’s general counsel, said during oral arguments on Friday.

The CFTC appealed the September ruling to the U.S. Court of Appeals for the District of Columbia. The case is ongoing.  

Political Prohibition

The CFTC has for many years regulated various financial instruments, including futures, swaps, and options. Attorneys with Kalshi argue that political event contracts “serve the interests of the public by harnessing the unparalleled power of free markets to produce high-quality, dynamic, predictive data.”

Kalshi’s legal brief alleges that Congress has made the judgment that derivatives involving politics are permissible for exchanges registered and regulated by the CFTC. When the CFTC ordered Kalshi to remove its election odds in June 2023, the agency said the contracts amounted to “gaming,” one of the CFTC’s prohibited unlawful offerings along with questions about terrorism, assassination, and war.

Judge Jia Cobb refuted the CFTC’s claims that Kalshi’s political contracts violated federal regulations.

The CFTC’s order exceeded its statutory authority,” Cobb wrote in September. “Kalshi’s contracts do not involve unlawful activity or gaming. They involve elections, which are neither.”

Cobb said the case “is not about whether the Court likes Kalshi’s product or thinks trading it is a good idea. She said it’s about “what Congress did, not what it could do or should do.” And “Congress did not authorize the CFTC to conduct public interest review it conducted here.”

Decision Forthcoming

The federal appeals court in the nation’s capital will review the evidence and oral arguments and will be expected to render its decision about whether Cobb errored in her ruling in the coming weeks.

Cobb was appointed to the appellate bench in 2021 by President Joe Biden. She was approved largely on party lines, with 49 Democratic senators and three Republicans getting her confirmation across the finish line.

It’s expected that the CFTC under the incoming President Donald Trump administration will take less issue with Kalshi and other exchange platforms it regulates that operate political derivatives. CFTC Chair Rostin Behnam, a strong opponent of allowing political wagering, is departing the office effective Feb. 7.

Trump is likely to name a conservative to the chair. Front-runners include CFTC Commissioners Summer Mersinger and Carolina Pham — both Republicans.

CFTC rules mandate that no more than three of the five commissioners be from the same political party.