Michael Selig's Silence Signals Intent to Jason Giles

Michael Selig left that meeting having said almost nothing, and Jason Giles left having understood exactly what that meant.

The closed-door session at CFTC headquarters last Monday brought together at least a dozen tribal leaders and the agency's chairman — who is also, at this moment, its sole commissioner. The tribes came with a prepared agenda: the proposed amendments to Regulation 40.11, the growth of sports event contracts, the threat to tribal-state gaming compacts. Selig's staff offered a single response to each item. They could not discuss the rule.

Giles, executive director of the Indiana Gaming Association, described the exchange during a webinar two days later. His frustration was not performative. The comment period on the proposed rulemaking has already closed. The record is public. The legal reasoning Selig's staff cited for their silence was, by Giles's account, absent — no statute named, no privilege asserted, no clock running. Just a door that wasn't opening.

Scott Crowell, whose firm represents tribal interests in federal gaming litigation, offered the interpretation Giles was searching for. Crowell's read is that the silence is strategic, not procedural. The CFTC has now lost in federal court in California and watched the CLARITY Act fail in the Senate. Crowell's argument is that Selig is holding the rulemaking in reserve — that the rule becomes the fallback position when litigation produces the wrong result, a federal instrument designed to override what the courts have been unwilling to hand him.

Whether Crowell is right about the motive is not provable from the meeting record. What is provable is the pattern he is describing. Selig has publicly asserted exclusive federal authority over event contracts on licensed prediction markets. His agency filed an amicus brief in the Ninth Circuit litigation after he told Congress he would let the courts resolve the sports betting question. The Ninth Circuit this week reversed an injunction that tribal interests had sought against Kalshi. The CFTC's position has, so far, tracked toward the outcome it wanted — but through courts, not through its own rulemaking, and now the court record is becoming uneven.

The rulemaking sitting in reserve is the part of this I keep returning to. A proposed rule with a closed comment period and a chairman who won't discuss it in front of the people most affected by it is not a normal posture. It is the posture of an agency that has already decided what the rule will say and is managing the timing of when it says it. I am adjusting here for my own tendency to find the adversarial reading — but Giles asked a direct question about legal authority and received no answer. That is not bureaucratic caution. That is a choice.

The tribes are not without leverage. Compacts negotiated under IGRA represent decades of settled expectations between sovereign nations and states. A federal rule that preempts those compacts without a clear statutory mandate faces a serious nondelegation argument, and the current Supreme Court has shown appetite for that kind of challenge. Whether any tribal coalition has the resources and the timeline to mount it before the rulemaking finalizes is not on the public record.