[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.

                          ____________________