Humane Society of the U.S. Sows Confusion and Scuttles Federal Legislation to Impose Felony Level Penalties for Horse Soring

Malicious, intentional cruelty should be a felony offense.

That was a long-held rallying cry for a wide range of animal protection organizations, including the Humane Society of the United (HSUS), where my former colleagues and I led an effort to remake the nation’s legal framework against malicious cruelty.

Adopting “felony-level penalties” was a strategy to deter crimes against animals and to signal to prosecutors that their investment of time and talent in a case would produce a stiff sentence and strong message to would-be perpetrators. Undergirding our strategy was the growing awareness that malicious cruelty is a violent crime, typically associated with other forms of social violence. 

As a measure of remarkable progress, by 2008 all 50 states had made dogfighting a felony, with cockfighting a felony offense in 42 states. By 2014, all states had provisions in their general anti-cruelty laws to make at least some form of malicious cruelty a felony.

Federal authorities need anti-cruelty laws with teeth

Paltry penalties for federal crimes against animals have long needed reforming, too. 

The Congress, for example, passed a law in 1976 to restrict some interstate transport of fighting animals, but provided only misdemeanors for violators.

Here’s the consequence: For as long as a generation, there hadn’t been a single federal enforcement action against animal fighting. Not one, despite a target-rich environment with thousands of fighting operations.

We turned our attention to the problem of upgrading the weak penalties in 1999, and it took us another eight years to secure them. We’ve strengthened that law three more times since, including in 2018 to impose a national ban on animal fighting in every corner of the U.S. And especially in the last couple of years, with Animal Wellness Action’s investigations and prompts, there’s been progress. While much more needs to be done, the federal government now announces cases against dogfighters, and increasingly against cockfighters, with frequency.

PACT and PAST Acts Promise Felony Penalty Provisions

Some eight years ago, we worked with colleagues and allies in Congress to introduce the Preventing Animal Cruelty and Torture (PACT) Act to create a national anti-cruelty law. We built in felony-level penalties for violators.    

If all the states had felony-level penalties for cruelty, I reasoned, there should be similarly strong penalty provisions at the federal level.

But the other major federal anti-cruelty law – the Horse Protection Act – hasn’t been strengthened in 50 years, and the plan was to overhaul it with the Prevent All Soring Tactics (PAST) Act.

For eight years, I gave my all to passing the PAST Act – to impose felony-level penalties on soring practitioners and to ban action devices and heavy stacked shoes. So did my colleague Marty Irby, who had been immersed in the industry and broke with show-horse equestrians and his family and friends to endorse the PAST Act. 

The reality is more than 99 percent of bills introduced in Congress in a two-year term are not enacted into law, and that’s the fate of all but a handful of animal welfare bills. We passed the PAST Act in the U.S. House last year but ran into steadfast opposition from U.S. Senate Majority Leader Mitch McConnell, R-Ky., and other powerful lawmakers aligned with the Tennessee Walking Horse industry. They wouldn’t allow the measure to pass in the Senate. With McConnell elected in November to another six-year term, it was plain to us, despite our best efforts, that the PAST Act was doomed.  The truth is, the composition of the Congress has a very material effect on the prospects for progress for any legislation.

So, 19 months ago, Marty and I sat down with the industry – people with whom we’d been in hand-to-hand combat with for years. We did so not for amusement or lack of other pressing matters to occupy us. We did so because continued failure on the PAST Act would mean continued cruelty to Tennessee Walking Horses, by all accounts one of the most docile and best natured of the equine breeds.

We negotiated a comprehensive deal, made possible by continuing to apply pressure on the industry and convince its leaders that they had lost the battle for public opinion. Some leaders in the industry were ready to turn the corner, but they wanted to ease into it, and the PAST Act was too abrupt. 

The original Horse Protection Act came into existence 50 years ago, when Senator Joe Tydings, D-Md., engineered its passage, working out a compromise with Senator Howard Baker, R-Tenn. Tydings was astute, and he knew he had to lock in some legislative standards that Baker could stomach even if the gains were not optimal, knowing that his successors could build on the foundation he created.  Little did he know that it would take half a century or more to get there because of industry influence. AWA and Clant Seay, the tireless and effective leader of the Citizens Campaign Against Big Lick Animal Cruelty, asked the Congressmen leading the PAST Act to rename the measure after the late Senator – the U.S. Senator Joseph D. Tydings Memorial PAST Act.

When Marty and I sat down with the industry leaders, our hopes were measured. We knew we saw the world very differently from the folks across the table from us. But we tried to be patient and to listen. And so did they. In the end, together, we secured a deal to ban chains and other “action devices” and the use of tail braces; to shrink the size and weight of the shoes dramatically, to eliminate industry self-regulation and to put USDA in charge of a comprehensive, science-based inspection program; and to impose felony-level penalties for the new federal crime of soring and increase the funding authorization for enforcement eight-fold.

These were landmark, sweeping changes in a statute dormant for half a century.

HSUS sows confusion to blocks felony-level penalties, other reforms

With all the reforms built into the PAST Act substitute, it’s a travesty that any animal welfare group that understands anything about the long history of obstructionism in Congress on the Walking Horse issue and the current political alignment on Capitol Hill would try to block its advance. But HSUS and the Humane Society Legislative Fund – the groups I led and built for more than a decade – did exactly that.

They claimed, in part, to be holding out for a new rule to be promulgated by the incoming Biden Administration. 

I know a thing or two about that rule because Marty and I worked on formulating it.

For starters, the rule cannot address penalties. It just addresses action devices and heavy stacked shoes – which the PAST Act substitute also addresses. (The rule also can’t increase funding for enforcement, and or ban the barbaric tail brace.) 

If revived, this rule – promoted at the end of the Obama Administration but never published in the Federal Register – is now more vulnerable in 2021 to a legal challenge than it originally was, since it the rationale and data supporting it has not been updated in the four years it’s been dormant.  

And should the rule survive certain legal challenge, it is unlikely to be enforced. The industry’s political allies have the power to keep enforcement funding to minimum levels, as they’ve done for decades. And U.S. Attorneys aren’t likely bring a case with only a misdemeanor penalty. 

What’s more, does HSUS not understand what happened to Obama-era rules on animal protection when Trump came into office? Trump’s team nixed the horse soring rule that was just about completed. They nixed the final Organic Livestock and Poultry Protection Rule that would have established the first set of federal farm animal welfare standards. They nixed final rules in Alaska to forbid the slaughter of wolves and bears in their dens on nearly 100 million acres of National Wildlife Refuges and National Preserves. 

If a Republican Administration prevails in 2024 and that President takes his cues from Republican lawmakers who dominate Tennessee and Kentucky politics and argue this is a regional issue, as happened with the Trump, they’ll either repeal the rule or ignore it. Do we want a federal anti-soring program that is not enforced just by Democrats and ignored by Republican Administrations?

In contrast to a rule, we presented the opportunity to enact a statute. While McConnell and other lawmakers from Kentucky and Tennessee have been powerful enough to block the PAST Act bill, they cannot unwind a statute once it’s passed. And in this case, McConnell and other closely allied lawmakers support the enactment of our proposed reform. And with it, they are breathing life into a proposed statute with a comprehensive enforcement program plan and funding level.

HSUS teamed up with the American Veterinary Medical Association (AVMA), in spreading “fake news” about the bill – making the absurd claim that the “bill is worse than the current situation.”

Frankly, I’d hoped that AVMA would agree to reforms to stamp out soring, but I’ve never expected much from the group. It’s always been a major nemesis on animal welfare issues at the federal level. The AVMA has been the biggest force against the federal anti-horse slaughter bill for two decades. AVMA was also one of the biggest voices against the legislation to ban race-day doping at horse racing tracks, since a good number of racing industry vets are themselves addicted to administering drugs. And the AVMA has consistently opposed efforts to stamp out extreme confinement of animals on factory farms, or curb the overuse of antibiotics in those places, which human doctors believe is creating a global crisis of antibiotic-resistant bacteria. 

What was most notable is that the two only two veterinarians in Congress, Rep. Kurt Schrader, D-Oregon, and Ted Yoho, R-Fla. – and the two lead authors of the PAST Act – both endorsed the compromise bill. Schrader and Yoho were involved in the negotiations and looked at the merits of the issues. They insisted on the inclusion of certain provisions, and they made credible arguments for every one of the demands they made of industry.

We also had the support of the PAST Act’s lead Senator author, Mike Crapo, R-Idaho.  Nonetheless, HSUS’s falsehoods about the bill, and its work to torpedo a bill to impose fierce penalties on perpetrators of malicious cruelty to horses, was disorienting for Senator Mark Warner, D-Va., who was the lead Democrat on the PAST Act.  He wouldn’t support the compromise, and the bill died this week as a result. While I wish Warner had dug into the substance more and looked at the merits, I blame HSUS for the smoke and mirrors game it played with him and other lawmakers.

HSUS efforts put all sorts of horses at risk

Within days, Congress is poised to pass a year-end spending package that could have easily included the PAST Act substitute. We would have seen the bill become law in head-turning speed, with all provisions phased in within a year’s time — a ban on the tools of torment and felony level penalties for transgressions. 

Earlier in this 116^th Congress, HSUS sold out America’s wild horses and burros and supported roundups of up to 30,000 horses a year – a years-long task of depopulating wild horses that the BLM’s Acting Director said could cost up to $5 billion taxpayer dollars. And instead of supporting funding for humane management of wild horses and burros on the range with proven fertility control, HSUS created doubt about that appropriation and instead lobbied for millions more to fund the BLM’s failed program of roundups and removal of the animals.

My advice: HSUS should disband what little remains of the equine protection program I started when I was CEO.

What that organization has done on the issues of Tennessee Walking Horses, wild horses and burros is a malpractice. The horses would be better off if HSUS worked to feed and water the shrinking number of horses under its care and left the legislating to groups and individuals with the know-how to stop industry and government from delivering pain and abuse to horses.

Wayne Pacelle is the president of Animal Wellness Action.