[Congressional Record Volume 163, Number 27 (Wednesday, February 15, 2017)]
[Senate]
[Pages S1167-S1169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONGRESSIONAL DISAPPROVAL OF A RULE SUBMITTED BY THE
SOCIAL SECURITY ADMINISTRATION
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of H.J. Res. 40, which the clerk will report.
The bill clerk read as follows:
A joint resolution (H.J. Res. 40) providing for
congressional disapproval under chapter 8 of title 5, United
States Code, of the rule submitted by the Social Security
Administration relating to Implementation of the NICS
Improvement Amendments Act of 2007.
The PRESIDING OFFICER. Under the previous order, there will now be 10
minutes of debate, equally divided.
The Senator from Iowa.
Mr. GRASSLEY. Mr. President, before we vote on the resolution of
disapproval, I want to reiterate several very important facts.
This resolution of disapproval is bipartisan. The resolution is also
supported by 23 groups, mostly disability rights groups.
The disability groups believe that this agency--the Social Security
Administration--and its regulation will unfairly stigmatize those with
disabilities. Of course, they are right.
The American Civil Liberties Union has said this:
We oppose this rule because it advances and reinforces the
harmful stereotype that people with mental disabilities, a
vast and diverse group of citizens, are violent and should
not own a gun. There is no data to support a connection
between the need for a representative payee to manage one's
Social Security disability benefits and a propensity toward
gun violence.
The ACLU goes on to say:
Here, the rule automatically conflates one's disability-
related characteristic, that is, difficulty managing money,
with the inability to safely possess a firearm.
The agency regulation is defective in many ways. Namely, the
regulation does not require the agency to prove a person is dangerous
or mentally ill. The regulation also provides no formal hearing or due
process before a person is reported to the gun ban list.
Supporters of the gun ban have said that repeal of this regulation
will interfere with the enforcement of the gun prohibition laws. I want
to say plainly and simply: This is hogwash. We should not let baseless
scare tactics confuse this important issue.
Important Federal gun laws are still on the books, even if the agency
rule is repealed. We aren't repealing any laws.
The new regulation is inconsistent with these existing Federal gun
laws.
The agency still has a duty to report anyone who has actually been
adjudicated as dangerously mentally ill to the gun ban list. That is
also true of anyone convicted of a felony or a misdemeanor crime of
domestic violence or involuntarily committed to a mental institution.
The Federal law requires this:
If a Federal department or agency . . . has any record of
any person demonstrating that the person falls within one of
the categories . . . shall . . . provide the pertinent
information contained in such record to the Attorney General.
This law remains in effect.
Repealing this regulation will merely ensure that disabled citizens'
Second Amendment rights are, in fact, protected.
Those rights will no longer be able to be revoked without a hearing
and without due process. It will take more than a personal opinion--
just a personal opinion of a bureaucrat--to abridge one's Second
Amendment rights.
An existing statute requires agencies to report the individuals to
the gun ban list who are ineligible to possess firearms. That
requirement remains intact even if this regulation is repealed.
So it is plainly wrong to claim, as has been said, that if the
regulation is disapproved, agencies will no longer have to report
prohibited persons.
If the supporters of this regulation want to take away people's gun
rights, then they need to acknowledge the government must carry the
burden to actually prove a person--prove a person--is dangerously
mentally ill. And the government must provide due process in that
process.
They need to go back to the drawing board, in other words, because
this rule is inconsistent with the very important Second Amendment
rights to bear arms, own, and possess guns--buy and possess guns.
Therefore, it must be repealed, and this resolution must be approved.
I yield the floor.
Mrs. FEINSTEIN. Mr. President, I rise today to urge my colleagues to
defeat a Congressional Review Act resolution that would weaken the
FBI's gun background check system and make it easier for individuals
with severe mental illness to buy guns.
Gun violence is an epidemic in our communities--killing more than
30,000 people each year; yet this resolution would prevent the. Federal
Government from taking even the most basic steps to improve enforcement
of current gun laws.
It blocks a rule that requires the Social Security Administration to
report to the FBI background check system individuals who have a severe
mental illness that prevents them from managing their own affairs. This
determination is made during the application process for Social
Security disability benefits.
This policy could have prevented tragedies like that of Janet Delana
and
[[Page S1168]]
her daughter Colby. Colby was diagnosed with paranoid schizophrenia in
201l. She received Social Security disability payments as a result of
her mental illness and lived with her parents in Missouri. A year after
her diagnosis, Colby used the money from her disability check to buy a
gun at a local dealer. Her mom called the dealer and begged him not to
make the sale. Janet explained that her daughter was mentally ill and
suicidal and that she would likely use the gun to harm herself or
others. Nonetheless, Colby passed her background check and bought the
gun. Just an hour later, Colby shot her father to death and tried to
kill herself. Janet's now a widow, and Colby lives in an institution.
Their story didn't have to end that way. We should all agree that
severely mentally ill individuals like Colby should not have access to
guns. Federal law already says that individuals with severe mental
illness are barred from purchasing or possessing guns. Yet time and
again, we have seen prohibited purchasers like Colby pass background
checks. That is because the background check system does not have
records of all mentally ill individuals barred from buying guns.
While the background check system has denied gun transfers to 1.3
million prohibited individuals--including felons, drug addicts, and
fugitives--it isn't perfect. There are individuals like Colby whose
information should be in the system--but isn't. We need to improve the
background check system and ensure information that is supposed to be
in the system is in fact included.
A recent report by the Police Foundation and Major Cities Chiefs
Association noted that this is critically important if we are going to
reduce violent crime in our country. The 2007 mass shooting at Virginia
Tech--the second deadliest mass shooting in our history--could have
been prevented if we had a better background check system. Seung-Hui
Cho, an angry, mentally disturbed individual, slaughtered 32 students
and teachers and wounded many others. After the massacre, we learned
that Cho in 2005 had been ordered to attend psychiatric treatment and a
judge ruled that he presented ``an imminent danger to himself as a
result of mental illness.'' As a consequence of this judge's
determination, Cho's name should have been entered in the NICS
database. But it wasn't--that is because the FBI didn't have the
records.
In response to the shooting, Congress in 2007 unanimously approved
the NICS Improvement Amendments Act to improve record keeping in the
background check system. Senators Ted Kennedy, Pat Leahy, Chuck
Schumer, and Tom Coburn worked together on the bill, and President Bush
signed it into law. The bill was supported by both the National Rifle
Association and the Brady Campaign to Prevent Gun Violence. That never
happens.
It is this bill--passed unanimously and supported by the gun lobby--
that required the Social Security Administration to issue the rule we
are debating today. The Social Security Administration engaged in a
painstaking process over the past year to develop this policy. It
received more than 90,000 comments from advocates and members of the
public. The rule was carefully crafted to identify individuals like
Colby, while protecting due process.
The majority of individuals with mental illness do not commit acts of
violence, and they would not be affected by this rule. The rule covers
only individuals with serious conditions, including schizophrenia, who
need additional assistance to manage their affairs. This determination
is made following an extensive review of medical evidence, which takes
place before the person is approved for Social Security disability
benefits.
The rule further specifies that it would only apply to prospective
claimants--starting in December 2017. That means it would not apply to
individuals who already receive disability benefits. Repealing this
rule through the Congressional Review Act would not only overturn the
policy that's been developed. It would block the Social Security
Administration from ever taking action to implement the NICS
Improvement Act and report mentally ill individuals to the FBI.
Time and time again, my Republican colleagues respond to horrific
mass shootings by saying that we don't need any new gun laws. We just
need to better enforce the gun laws we already have. That is exactly
what this rule aims to do--improve enforcement of current law and make
sure people already barred from buying guns can't buy guns.
So, the question comes: What won't Republicans do to appease the gun
lobby?
We lose more than 30,000 people to gun violence each year in this
country, many of whom are mentally ill and commit suicide. It should
shock the conscience of the American people the Senate is considering
weakening our Federal background check system in response to this
unabated epidemic of violence.
I urge my colleagues to vote against repealing the Social Security
Administration's rule. Thank you.
Ms. COLLINS. Mr. President, I rise in support of H.J. Res. 40, a
resolution of disapproval of the rule submitted by the Social Security
Administration relating to the implementation of the NICS Improvement
Amendments Act of 2007. The rule in question would require the Social
Security Administration to send to the Attorney General the names of
certain beneficiaries for inclusion in the NICS background check
database and would make it illegal for these beneficiaries to own or
possess a firearm.
In matters where the government is promulgating regulations limiting
the Constitutional rights of Americans, it is especially important that
the regulations be drafted carefully. I am concerned that this rule
targets individuals with mental illness without requiring the Social
Security Administration to determine that the individuals whose rights
are being limited are dangerous either to themselves or others. As a
result, this rule inadvertently reinforces an unfortunate and
inaccurate stereotype that suggests that most individuals with mental
illness are violent.
Rather than focus on whether the beneficiary presents a danger, the
rule instead turns on beneficiaries' ability to manage their finances.
Because of this, the rule includes a test that could lead to absurd and
unfair results. Under the rule, two individuals could present the exact
same condition and symptoms, but if one of them required assistance
with their financial affairs, that person would be reported to the NICS
background check system, while the other would not.
I hope that the Social Security Administration will consider these
suggestions as well as the comments from my good friend from
Pennsylvania, Senator Toomey, and others, and promulgate a new rule.
Addressing these concerns would result in a more effective rule,
consistent with Constitutional requirements, which would make Americans
safer while protecting the rights of those living with mental illness.
Mr. VAN HOLLEN. Mr. President, guns kill 36,000 Americans every year.
That's nearly 100 Americans every day.
To help address this scourge of violent death, Congress enacted the
Brady Handgun Violence Prevention Act in 1993. The Brady Act required
the Attorney General to establish the National Instant Criminal
Background Check System, or NICS, to determine whether Federal law
prohibits a potential buyer from getting a gun.
Following the Virginia Tech massacre in 2007, which left 33 dead,
President George W. Bush signed into law the NICS Improvement
Amendments Act to improve the national background check system. The
Virginia Tech shooter was able to buy a gun because the background
check system did not include information about his mental health.
The prohibition on buying a gun now applies to people who, as a
result of their mental condition, have been determined to pose a danger
to themselves or others or lack the capacity to manage their own
affairs. The Social Security Administration proposed its rule to meet
the requirements to strengthen the background check system in the 2007
NICS Improvement Amendments Act.
The Social Security Administration's rule defined Social Security
disability beneficiaries who are have a mental impairment and need
another person --known as a ``representative payee''--to handle the
receipt of their benefits to fall within the category of those
[[Page S1169]]
who lack the capacity to manage their own affairs. Importantly, these
determinations would be subject to judicial review. The rule is not a
perfect fit, but it is an appropriate one.
I have heard from some disability rights advocates that this rule may
be unduly broad and might prohibit too many people from owning a gun. I
am sensitive to the concerns of people with disabilities. It is wrong
to stigmatize people with mental disabilities as the cause of gun
violence. And people with disabilities, like all Americans, have
important rights under the Second Amendment. I would be open to changes
to the rule that would make appeals from determinations easier to make,
and I would be open to other ways to better identify people who are a
danger to themselves or others or lack the capacity to manage their own
affairs.
A resolution to disapprove the rule under the Congressional Review
Act, however, is not the right way to get to a better result. If
Congress enacts the resolution of disapproval, then the law would
prohibit the Social Security Administration from writing a better rule
in its place.
Better still, Congress could enact sensible gun legislation. But
instead of working with Democrats to improve the law, Republicans have
chosen to use the blunt instrument of the Congressional Review Act to
repeal the rule. Using the Congressional Review Act is far from the
most precise way to address this problem.
The powerful gun lobby has prevented Republicans in Congress from
supporting common sense legislation that most Americans favor. The
overwhelming majority of Americans believe in universal background
checks and that guns should be kept out of the hands of people who have
been determined to pose a risk or are unable to manage their affairs.
Repealing the Social Security Administration's rule would go in the
opposite direction. Enacting this resolution of disapproval will only
make it harder to keep American communities safe, and thus I oppose the
resolution.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, whenever the discussion in the Senate turns
to gun violence, we often hear Senators say: We shouldn't be talking
about guns; we ought to be talking about mental health. That is exactly
what we are trying to make sure is the focus of this debate because
this proposed rule is about mental health, and it is about background
checks; it is not about taking away anyone's constitutional rights.
Here is how the proposal works. If there is an individual with a
severe mental impairment--that means that another person, perhaps a
family member--is in charge of their Social Security benefits, then the
background check is to be informed by Social Security that the person
with a severe mental impairment is ineligible to buy a gun.
Having listened to the debate yesterday, I think everybody is going
to be a little confused about what happens then because the reality is
that anyone who thinks they have been unfairly affected can appeal, and
the likelihood is substantial that they are going to win. If the appeal
goes the other way and the individual believes the decision is wrong,
then that person can take the matter to court. It is not true to say
this rule deprives any American of due process. It is a rule aimed
directly at the two areas in this debate--mental health and background
checks--where there is enormous support from the American people.
The reality is you can talk to people in virtually any community--you
can go to a townhall meeting in any part of the United States--and you
will hear enormous support for background checks. One recent poll found
that 92 percent of gun owners supported expanded background checks.
Ninety-two percent of gun owners supported background checks. So not
only is the position I am articulating not extreme, opposing background
checks is the position that, in fact, has become increasingly out of
the mainstream.
As the courts continue to interpret the language of the Second
Amendment, one matter has been clear: Background checks are a
constitutional part of the exercise of those rights.
I have heard some saying that the rule can be improved, that it ought
to be tailored. I am very open to having a debate around those kinds of
questions. That is not going to be possible if this resolution passes.
This will preempt debate. The resolution doesn't just scrap the rule,
it blocks any further step on this issue for years. In my view, that
would be the wrong way to go, even if you have suggestions for
improving the rule.
So to wrap up the debate, I want colleagues to know that this rule,
this proposal that has been described on the floor--this resolution--
ought to be opposed because for those who want improved mental health,
for those who want background checks, for those who are just saying
what we need to do in this area as it relates to gun violence--it is
not about Democrats and it is not about Republicans; it is about common
sense. The commonsense position today for background checks, a focus on
mental health, and, most importantly, common sense is to oppose the
resolution.
I yield the floor.
The PRESIDING OFFICER. Is there further debate?
Mr. GRASSLEY. Mr. President, on this side I yield back our unused
time.
Mr. WYDEN. I yield back.
The PRESIDING OFFICER. All time is yielded back.
The joint resolution was ordered to a third reading and was read the
third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution pass?
Mr. GRASSLEY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The result was announced--yeas 57, nays 43, as follows:
[Rollcall Vote No. 66 Leg.]
YEAS--57
Alexander
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Cruz
Daines
Donnelly
Enzi
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heitkamp
Heller
Hoeven
Inhofe
Isakson
Johnson
Kennedy
King
Lankford
Lee
Manchin
McCain
McConnell
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Shelby
Strange
Sullivan
Tester
Thune
Tillis
Toomey
Wicker
Young
NAYS--43
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Franken
Gillibrand
Harris
Hassan
Heinrich
Hirono
Kaine
Klobuchar
Leahy
Markey
McCaskill
Menendez
Merkley
Murphy
Murray
Nelson
Peters
Reed
Sanders
Schatz
Schumer
Shaheen
Stabenow
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The joint resolution (H.J. Res. 40) was passed.
____________________