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Digging deeper on gun background check legislation
Molly Moorhead
By Molly Moorhead June 3, 2013

We recently fact-checked a claim from the Reclaim America PAC about background checks for gun purchases. In a TV ad, the PAC said Kelly Ayotte "voted to fix background checks." We rated the statement Half True, noting that Ayotte voted for a bill that left in place exceptions for gun shows and purchases over the Internet.

After we published this fact-check, Mayors Against Illegal Guns contacted us, suggesting that the ruling should have been lower than Half True. We gathered more information from them, as well as from the proponents of the bill. We have decided to leave the claim rated Half True, but we also learned additional details about the bill that Ayotte voted for. Here’s what we learned.

Truth behind the incentives

It’s important to understand the context of the amendments on the recent gun background checks.

On April 17, senators voted on a series of amendments. Advocates for stricter rules for gun purchases put most of their hopes in a bipartisan amendment, sponsored by Sens. Joe Manchin, D-W.Va., and Pat Toomey, R-Pa., that expanded background checks to gun shows and Internet sales, but did not require them of family members and friends giving or selling guns to each other. The amendment was seen as a compromise, replacing stricter language from Majority Leader Harry Reid’s Safe Communities, Safe Schools Act of 2013.

But the Manchin-Toomey compromise amendment still fell short of the necessary votes. Ayotte joined Republican colleagues in a mostly partisan vote, defeating the measure 54-46. (Procedurally, the amendment needed 60 votes to pass).

The same day as the vote on Manchin-Toomey, Republican Sens. Charles Grassley of Iowa and Ted Cruz of Texas introduced a substitute amendment.

The Grassley amendment did not expand the requirement to cover any new firearms sales, such as at gun shows or over the Internet. But it would have provided incentives for states to submit relevant mental health records to the National Instant Criminal Background Check System and required federal courts to do so. It also would have allocated money for prosecuting violations of the background check requirement.

For the most part, Democrats favored Manchin-Toomey, while Republicans favored Grassley-Cruz. A bipartisan group of eight senators ended up voting in favor of both measures.

In their second pitch to PolitiFact, Mayors Against Illegal Guns argued that the incentive provided in the Grassley-Cruz bill was not as advertised. The incentive was an authorization for grant money to help states submit records to the NICS. That can be an expensive undertaking because some records are not digital or aren’t housed in a centralized office.

Ted Alcorn, senior policy analyst with Mayors Against Illegal Guns, said the program has always been authorized at more than $100 million per year. President Barack Obama, among his executive actions following the Newtown, Conn., school shooting, asked for $50 million. Manchin-Toomey authorized $100 million.

But Grassley-Cruz set a new cap of $20 million.

"That is the exact opposite of what is needed," Alcorn said. "This bill essentially reduces the opportunity for states to get that funding. It doesn’t improve it."

But there’s a finer point here. Authorization and appropriation are often very different things in Washington. (Authorization means funding is permitted under the law; appropriation means the program actually gets the money.) Alcorn acknowledged that the grants have never been appropriated at more than $17 million per year. Some years it’s been as low as $10 million.

To the bill’s supporters, the lower cap is sensible policy.

"Grassley-Cruz was a realistic promise to fund these grants," said Sean Rushton, a spokesman for Cruz.

"We thought it was a signal to the appropriators to fund above what they’ve been giving," added Nick Podsiadly, counsel to the Senate Judiciary Committee.

And the penalties

Both sides agree that the penalty system for states that fail to submit records is faulty. States are supposed to estimate the number of records that should be submitted to the background check database, and then if they miss that target, they can be penalized by losing out on other grant funding.

But the estimates have never proven reliable. The Grassley-Cruz bill eliminated that requirement.

"They had to guess how many people would be prohibited (from buying a gun), and their measure of performance would be tied to that guess," Podsiadly said.

Under Grassley-Cruz, states that failed to submit records would still have seen a decrease in grant money -- some 10 percent after five years.

Alcorn countered that the penalties have not been very effective, which is all the more reason to focus on boosting incentives.

"The states that got money have submitted more records than states that didn’t obtain funding," he said.

What about the mentally ill?

Mayors Against Illegal Guns argued that Grassley-Cruz eliminated some categories of mentally ill people who were prohibited from buying guns.

For example, a person who has been deemed unable to manage their own affairs would no longer be banned from gun purchases, Alcorn said.

In addition, someone who is involuntarily committed to a hospital or psychiatric facility could be sent there by a police officer, paramedic or doctor. Then the person would typically have a right to a court hearing, but many people are released before that happens.

The Grassley bill would have counted only commitments that are court adjudicated.

"If a court has not issued an order committing someone, then their commitment doesn’t count, and that’s the vast majority of commitments," Alcorn said. "Your garden variety involuntarily committed person would never be prohibited. They would pass a background check."

Podsiadly called that an interpretation that doesn’t align with typical state practices -- that judges would not automatically remove people from banned lists for buying guns.

Podsiadly also noted that the Grassley-Cruz bill provided resources to states to deal with mentally ill people in jails and assist veterans with mental health and substance abuse problems -- provisions that were not in either the Manchin-Toomey amendment or the underlying bill sponsored by Nevada Sen. Harry Reid.

"Grassley-Cruz was labeled as do-nothing, but if you actually read what our bill would do, I’m confident that it would have made a greater dent in gun violence," he said.

Our conclusion: We are still convinced that each bill would have addressed the background check system in different ways. Our ruling stays at Half True.

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Digging deeper on gun background check legislation