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A Project of The Annenberg Public Policy Center

Checking on Background Checks

An ad from Mayors Against Illegal Guns accuses Sen. Jeff Flake of breaking a promise to strengthen background checks because he voted against a bill that would have expanded background checks. But Flake did not promise to expand background checks, and he voted in favor of a bill that he argues (though others contest) would have strengthened the system.

The gun control group led by New York City Mayor Michael Bloomberg has been running TV and print ads in Flake’s home state of Arizona after Flake voted against an amendment offered by Sens. Joe Manchin, a Democrat, and Pat Toomey, a Republican. The bipartisan legislation that would have expanded background checks to private sales by unlicensed individuals at gun shows and over the Internet.  Among the major gun bills considered in the wake of the school shooting in Newtown, Conn., the Manchin-Toomey amendment was viewed as having the best chance of passage.

Minutes after the Manchin-Toomey amendment failed to get the 60 votes necessary to move forward, Flake voted in support of a Republican alternative, the Grassley amendment, which received less attention. We’ll get to the particulars of each proposal, but in order to sort through the competing claims — which we are sure to see more of in future elections —  it is important to remember that the sides are talking about two different bills.

In mid-January, Flake registered his opposition to President Obama’s gun control plan, saying it “goes too far.” And in a statement reported by the Arizona Republic in early March, a spokeswoman said Flake opposes universal background checks, but “believes in broader background checks like making sure mental-health records are more efficiently integrated into the National Instant Criminal Background Check System. He’s working on legislation to strengthen the reporting process of mental-health records so that those who shouldn’t have access to guns are barred from purchasing them.”

The Grassley amendment addressed those concerns, and Flake never supported expanding background checks in the way proposed by Manchin-Toomey.

The Mayors Against Illegal Guns ad features direct-to-camera comments from Caren Teves, whose son was killed in the Aurora, Colo., movie theater shooting rampage. Teves explains that she wrote Flake a letter urging him to support background checks.

She then read from Flake’s hand-written response: “I am truly sorry for your deep loss … Strengthening background checks is something we agree on.” (The actual text of the letter read: “I am truly sorry for your deep loss. Your son’s actions were truly heroic. I read your letter. While we may not agree on every solution, strengthening background checks is something we agree on.”)

“One month later,” Teves says in the ad. “Senator Flake voted against strengthening background checks. The issue isn’t just background checks, it’s keeping your promise. And Senator Flake didn’t.”

The question is whether Flake broke a promise to strengthen background checks.

On April 17, Flake voted against the Manchin-Toomey amendment, which included measures not only to strengthen the background check system, but also to expand it to gun shows and internet sales. (Here is a fact sheet on the bill created by Manchin). The amendment was supported by 54 members and opposed by 46. It needed 60 votes to move forward.

Genevieve Rozansky, a spokeswoman for Flake, said that the ad conflates “strengthening” background checks (which she said Flake supports) with “expanding” background checks, which the Manchin-Toomey amendment would have done, and which Flake did not support.

Immediately after the Manchin-Toomey amendment failed, the Senate considered a Republican alternative proposed by Sens. Chuck Grassley and Ted Cruz. Flake supported that measure, which also failed to advance after a 52-48 vote.

Flake contends his support for that bill demonstrates his commitment to “strengthen” the background check system. Among the measures in the amendment, Flake’s office noted:

  • Includes more disqualifying mental health records — or records that would prevent certain individuals from purchasing or owning a firearm — in NICS (the National Instant Criminal Background Check System);
  • Provides grants to states to facilitate adding disqualifying records to NICS;
  • Includes more federal criminal records in the system;
  • Increases penalties on criminals who try to circumvent background checks;
  • Clarifies current law by making clear which mental health records states and federal agencies need to provide to NICS (language that Flake helped write);
  • Cracks down on straw purchasing so criminals cannot avoid background checks through straw purchasers;
  • Increases the penalty for lying to a licensed firearm dealer in order to circumvent background checks from 5 years to 10 years;
  • Increases the penalty for anyone selling to a prohibited person from 10 years to 15 years;
  • Requires Justice Department to prioritize prosecutions of gun crimes and provides additional resources for these prosecutions.

Mayors Against Illegal Guns contends the Grassley amendment — which was supported by the National Rifle Association — would actually weaken the background check system. Specifically, it says the bill would have: cut funding for state grants related to the background check system; removed the ban on gun ownership for people who have been involuntarily committed to mental hospitals unless that decision was made by a court (not just a doctor); and removed the ban on gun ownership for people found to lack the mental capacity to manage their affairs.

Voters can make up their own minds about which, if either, bill they prefer. But the fact is Flake never promised to support the Manchin-Toomey bill specifically, nor more generally an expansion of background checks to gun shows and Internet sales.

“The letter Senator Flake wrote to Mr. and Mrs. Teves was written and sent in mid-March — the Manchin-Toomey amendment wasn’t drafted until early April, so the letter should not and could not have been intended as a promise to support that particular measure,” Flake’s spokeswoman Rozansky wrote to us in an email.

Flake’s office later clarified that the letter was sent around March 8. Before the letter was sent, Flake had publicly stated his opposition to universal background checks, and stated his support for “broader background checks like making sure mental-health records are more efficiently integrated into the National Instant Criminal Background Check System.” That’s consistent with what was included in the Grassley amendment. On March 12, Flake voted against a bill in the Senate Judiciary Committee that would have required background checks for all gun purchases.

The Mayors Against Illegal Guns ad is backed by a “six-figure ad buy” and will air for two weeks in Phoenix and Tucson, according to a spokeswoman for the group. Flake is not up for reelection until 2018.

Flake’s approval rating took a dive after his vote against the Manchin-Toomey amendment, with one poll finding that the recently elected Arizonan was the least popular senator in the country. Flake acknowledged that was tied to his vote.

“Nothing like waking up to a poll saying you’re the nation’s least popular senator,” Flake wrote on his senate Facebook page. “Given the public’s dim view of Congress in general, that probably puts me somewhere just below pond scum. Now, notwithstanding the polling firm’s leftist bent, I would assume that my poll numbers have indeed taken a southerly turn since my vote against the Manchin-Toomey background check proposal. It was a popular amendment, and I voted against it.”

Given polling numbers like those, it’s likely that we will be seeing a lot of campaign ads tied to these recent gun votes. Undoubtedly, some candidates will boast of voting to strengthen background checks, even though they opposed the Manchin-Toomey amendment.

Indeed, the National Rifle Association came to the defense of Sen. Kelly Ayotte of New Hampshire with a TV ad that claimed she “voted for a bipartisan plan to make background checks more effective.” Like Flake, she voted against the Manchin-Toomey amendment, but for the Grassley amendment. (For the record, there were no Democratic cosponsors for the Grassley amendment, although it did receive nine Democratic votes.)

Voters are advised in advance to scrutinize claims from candidates making claims about gun legislation, particularly on background checks. There was more than one gun piece of legislation, giving both sides ammunition to make conflicting claims about support for strengthening background checks.

— Robert Farley