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News / Politics

Republicans look to reverse rule based on gun law they backed

By Michael Macagnone, CQ-Roll Call
Published: May 26, 2024, 6:00am

WASHINGTON — Republican backers of a once-in-a-generation gun violence bill now lead the charge against one part of the Biden administration’s implementation of the law, a falling out that illustrates the delicacy of trust required to pass legislation on hot-button issues.

A Congressional Review Act joint resolution of disapproval introduced Wednesday in the Senate by John Cornyn, R-Texas, could force the chamber to vote on overturning a rule from the Bureau of Alcohol, Tobacco, Firearms and Explosives that would expand the number of gun sellers who would be required to run background checks.

Cornyn had negotiated the 2022 gun violence prevention law that the administration relied on for the ATF rule. Now he has 41 Senate Republicans who back his joint resolution to stop that rule.

“Every time that they ask for bipartisanship, then if you provide bipartisan solutions, then they overreach and undermine any sort of good-faith negotiations that take place,” Cornyn said.

Democrats have touted the rule, and the 2022 law the administration based it on, as a shining example of bipartisanship and a major step toward making background checks on gun purchases universal.

In a floor speech Tuesday marking the anniversary of one of the mass shootings that sparked the law, Majority Leader Charles E. Schumer, D-N.Y., said the law and implementing rule “shows change is possible when both sides work together even when progress is hard and halting.”

But Cornyn, Sen. Thom Tillis, R-N.C., and others who helped negotiate the law’s passage said they felt burned by the White House’s decision to push the rule so much further than they expected.

They say the administration took a small change in the language around who can be considered a gun dealer and used it to create a rule that massively expands who qualifies as a gun dealer — and now must comply with federal rules including background checks.

“They basically took a negotiated bill and they changed it and tried to change the law,” Cornyn said.

The 2022 law included sweeping changes to mental health treatment, expanded state grants for school safety, violence prevention and other measures meant to reduce gun violence. The Senate passed the bill 65-33 and the then-Democratic House 234-193 following bipartisan talks after mass shootings in Buffalo; New York; Uvalde, Texas; and Tulsa, Okla.

The final bill did expand the records used for background checks on gun purchasers under age 21, increased punishments for straw purchases and closed the so-called boyfriend loophole — which expanded the gun ban to people convicted of domestic violence against a dating partner as well as a spouse.

But it lacked gun control provisions than Democrats initially hoped for, such as provisions included in House-passed bills to expand background checks and ban assault weapons and bump stocks.

Tillis praised Sen. Christopher S. Murphy, D-Conn., and other negotiators for being willing to work with Republicans on measures they would be willing to vote for. But Tillis said the administration used that agreement beyond the negotiations.

“This bill was considered a once-in-a-generation bill,” Tillis said. “They will be responsible for it waiting for another generation if they don’t honor the congressional intent on how they go about implementing the rules.”

Representatives for the ATF and White House did not respond to requests for comment.

Rule challenges

President Joe Biden announced the rulemaking last year at the site of another mass shooting in California, directing the ATF to change the definition of who qualifies as “engaged in the business” of dealing firearms.

That definition determines who is required to comply with federal rules for gun dealers, which includes running background checks for purchases.

Previously, to qualify as a gun dealer a person’s “principal objective” in selling firearms must be for “livelihood and profit.” The 2022 law altered that requirement, changing it to “predominantly earn a profit.”

Under the new rule, anyone who sells firearms for profit must obtain an ATF license and comply with gun dealer regulations. The rule, officially adopted last month, specified that it is not meant to capture hobbyists, collectors or all private sales.

Tillis and Cornyn objected early in the rulemaking process. The pair sent a letter to the ATF in December, calling the bill a “material breach” of what they had negotiated in 2022.

The letter said the change in the law was meant to require more gun sellers who operate under the radar to follow federal rules, not change the background check system wholesale.

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“Our goal in passing [the law] was to prevent someone from shopping around for an unlicensed firearms dealer, not to give the ATF the authority to impose a gun control regime on law-abiding Americans,” the letter said.

Top Senate Democrats have backed the rule, including in a November 2023 letter to the ATF encouraging its adoption.

Murphy, who was one of the top Democrats to negotiate the 2022 bill, said he thought the “clear intent” of the bill was to require more background checks of commercial sales of firearms, even if the seller was not operating as a permanent dealer.

“But that’s probably to be expected that somewhere along the line when it comes to the implementation of that law, there was going to be some disagreement,” Murphy said.

Tension over rules

The dynamic is a familiar one for Congress, according to Josh Huder, a senior fellow at The Government Affairs Institute at Georgetown University.

Passing major legislation can take months of delicate negotiations, Huder said, and then Congress must hand it off to the administration to implement on trust.

“Even when members of Congress are passing major pieces of policy they mostly agree with, they may disagree with how the legislation gets implemented,” Huder said. “So this could be politics or it could just signal back to their constituents that the way the law is being implemented is different from what they intended.”

Tillis said the background check rule is the latest sign of the administration undermining what little bipartisan trust there is in Congress and a reason why major legislation doesn’t get done.

One of the biggest agreements that fell apart in the past year was on a major border security and immigration deal. Murphy, one of the negotiators on that issue as well, attributed that failure more to election-year politics than genuine disagreement.

Murphy pointed to statements former President Donald Trump made in January encouraging Republicans not to back the immigration deal and to blame it on him.

“I think we’re getting closer to election time, so I think there’s going to be a little less happy talk between Republicans and the administration,” Murphy said.

CRA process

The joint resolution from Cornyn and other Republicans adds to a court challenge already facing the rule.

Under the Congressional Review Act, both chambers of Congress can vote on a joint resolution to overturn a federal regulation, sending it to the president. Rep. Andrew Clyde, R-Ga., introduced a House version of the measure Thursday.

The administration has not yet taken an official position on the Republicans’ joint resolution, but even if it passed both chambers of Congress it would likely face a presidential veto. Biden has touted the rule repeatedly in public statements, as well as Vice President Kamala Harris through the White House Office of Gun Violence Prevention.

It’s not the first time that Cornyn and others have bucked the administration over implementing the 2022 gun violence law.

Last year, a bipartisan majority in both chambers of Congress backed legislation that reversed a Department of Education decision to prevent the use of federal funds on archery or hunting education using the 2022 law. That measure passed the House on a 424-1 House vote and passed the Senate by unanimous consent last September.

These spats of implementation of high-profile legislation don’t always fall along party lines. The administration has also engaged in a monthslong row with Sen. Joe Manchin III, D-W.V., over its implementation of electric vehicle battery rules based on the 2022 climate law — eventually adopting rules over his objections.

Huder said legislators are in a constant bind, as passing legislation requires them to trust a presidential administration at least somewhat even if it’s controlled by the opposite party.

“Are they going to be burned and jilted? Are they going to be less likely to work with the administration? It’s hard to know,” Huder said. “They have a huge incentive to keep working with the administration if they want to get anything done.”