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Gun Policy

What Happened to the $1.3 Billion Congress Approved to Improve Federal Gun Background Checks?

The NICS Improvement Amendments Act of 2007 was intended to improve lapses in state record keeping that have allowed dangerous people like Dylann Roof to get a gun. Here’s why almost 90 percent of that money has never been spent.

Like many programs aimed at preventing bad behavior, the National Instant Criminal Background Check System (NICS) only makes the news when it fails. Rarely has it failed more prominently than in the case of alleged Charleston church shooter Dylann Roof, who got his hands on a gun despite a disqualifying confession for drug use after spotty record-keeping allowed his Glock purchase to move forward on a so-called default proceed. This week, questions about the effectiveness of federal background checks have swirled again as journalists and investigators seek a definitive answer on whether Lafayette movie theater shooter John Hauser was involuntarily committed to a Georgia mental ward. If he was, that should have barred him from buying a gun – as long as the record made it into the system, which itself is far from a sure thing.

While critics argue NICS allows dangerous people to slip through the cracks, one architect of the program counters that the system is as good as the material it’s got to work with. Frank Campbell, a former senior attorney for the FBI and the Department of Justice, was in charge of implementing the federal background check system created by the Brady Act of 1993 and managed the program from its launch until he left the government in 2008. Now working as a security consultant, Campbell says that the only obstacle to a fully-functional NICS system is getting fast, accurate access to local and state records, which are often inconsistent and sometimes still in paper files.

Congress agrees: Back in 2008, President George W. Bush signed a bill authorizing more than $1 billion in grants to improve local records reporting. What’s got Campbell confused is why — if there’s so much consensus around the idea that NICS would work better if states did a better job of reporting records to the FBI – almost none of the money authorized in 2008 has actually been released.

“There’s been no publicly stated reason by Congress or the President why they ask for so little in their budgets,” Campbell tells The Trace. “It doesn’t make any sense.”

This summer’s mass shootings have provided indelible examples of the real-world consequences of these reporting gaps. Overall, 90 percent of background checks take less than two minutes to complete. But when the initial scan leaves the buyer’s eligibility in doubt, the application is given a “yellow light,” and FBI examiners have three business days to track down the information that will resolve whether the sale should move forward; after that deadline, the purchase can go through whether or even if the background check remains incomplete. That’s how a gun store was legally allowed to sell Roof the handgun he used to kill nine people in Charleston: An administrative error meant NICS investigators couldn’t see the specifics of his local drug charge, pushing his background check past the time limit.

According to 2007 Congressional testimony by Campbell’s colleague Rachel Brand, 3 percent of checks take the FBI’s NICS division more than three business days to complete, and thousands never receive any determination at all. With 8.2 million background checks performed by NICS in 2014, even a small fraction represents a significant number of default proceeds: 228,006 checks exceeded the three-day period last year, resulting in at least 6,000 gun sales to buyers later found ineligible for firearms ownership.

In Campbell’s words, there is one reason the FBI allows default proceeds: “There are certain local records that are not available to the system.” Each state has different standards for what records it keeps, how it keeps them, and what it sends to the background check system. Figuring out the dispositions of criminal charges sometimes requires getting a local court clerk to dig through physical files. Mental health and substance abuse records are often not reported at all, in any form, which has only deepened the puzzle of Houser’s eligibility for gun ownership.

In total, Congress estimates nearly 21 million criminal records are not accessible by NICS, and millions more are incomplete. Given this patchwork of rules and resources, in some cases, it’s nearly impossible for the Bureau to get a complete picture of who should be prohibited from buying a gun.

The NICS Improvement Amendment Act was intended to fix this. Introduced in the wake of the 2007 Virginia Tech massacre (the mental record of gunman Sueng-Hui Cho was also not accessible to NICS investigators due to state reporting practices) by Rep. Carolyn McCarthy of New York, the bill quickly reached the desk of George W. Bush, and was signed into law early the next year. The legislation authorized more than a billion dollars in grants to states and territories to improve record keeping systems and reporting to NICS.

That seemed like a serious commitment to a robust background check system. But since the bill became law, Congress has given out only 11.5 percent of that money, even as authorization for the spending has been extended beyond the original timetable.

“Everybody knew what was going on — the NRA never wanted any records kept,” says former Congressman James Moran.

In 2009, the first year funds became available, the law gave the green light to $187.5 million in grants. Only $2.5 million was actually appropriated. Funding has significantly increased under the Obama Administration but still has never come close to the amounts called for by the bill, peaking in the fiscal year 2015 budget at $78 million before falling to $55 million in the President’s 2016 budget request. Unused authorizations do not roll over, so funds not appropriated within one year’s budget are no longer available.

“Some of the gun control groups thought the battle was over [when this law passed],” says former Congressman James Moran, a Democrat who represented Virginia’s 8th District from 1991 to 2015, and served on the House Appropriations Committee. “But the insiders realized it didn’t matter how much was authorized if the appropriations committee doesn’t fund it.”

Former and present Hill staffers who spoke to The Trace on background felt the paltry funding level was a consequence of how the grants’ eligibility criteria were written. Under the Act, states are required to have a “relief from disability” program, through which persons deemed ineligible for gun ownership due to mental health diagnoses or criminal records can petition for the restoration of their rights.

The provisions make some policymakers queasy: a well-publicized survey from the 1990s by the Violence Policy Center shows numerous instances of felons who received this relief and later committed more crimes. According to a 2015 Congressional Research Service memo obtained by The Trace, only 29 states allow relief from disability, with Connecticut eliminating its program after the Sandy Hook Elementary School shooting. With such a large number of states therefore ineligible for NICS improvement grants, the argument goes, lawmakers don’t prioritize the spending when appropriating federal dollars.

When this explanation for the low funding levels was put to Campbell, he didn’t buy it. Each year since the passage of the NICS Improvement Act, at least three states and as many as seven have enacted relief from disability provisions. But despite the momentum that policy is enjoying, grant awards still fall short of what the bill called for.

A colleague who worked in the Department of Justice during Obama’s first term told Campbell that under the current administration, NICS record improvement had “gone to seed.”

James Moran had a more political explanation for the parsimoniousness. Back in 2007, the NRA publicly applauded the Act for its relief from disability provision and the fact that it barred federal fees for NICS checks. It looked like a non-controversial way to better enforce current laws. But Moran says the NRA then turned around and worked with allies in Congress to cut off funding for these grants when the appropriations committee put each year’s budget together.

“Everybody knew what was going on — the NRA never wanted any records kept,” says Moran. Keeping the background check system incomplete, Moran believes, allows the NRA to point to it as a failed system and rally against its expansion to private sales.

Knowing the NRA would excel in this backroom maneuvering, Moran says, moderates and Democrats didn’t bother putting up a fuss over the grants issue. While those lawmakers may have agreed that states needed help completing records, Moran believes they also knew that “to fund this program, they’d be forced to take money from other areas.” And because messy appropriations fights take place largely out of public view, no one would know if they weren’t willing to make that trade off. The original act’s authorization provided political cover to everyone in Congress. “Having the appearance of action was an excuse for not doing other things,” Moran says.

Frank Campbell also believes the NRA’s foes have let this issue languish: A colleague who worked in the Department of Justice during Obama’s first term told him that under the current administration, NICS record improvement had “gone to seed.”

The NRA did not respond to request for comment on Moran’s charges. The Trace contacted the House and Senate Appropriations Committees, as well as the White House Office of Management and Budget, to comment on the gap between money authorized to modernize and complete the background check system and what was actually dispensed. None replied.

Todd Tiahrt, a former Republican Congressman who represented Kansas’ 4th district from 1995 to 2011, served on the Appropriations Committee alongside Moran and was known for his staunch opposition gun laws. Reached by phone, he made his opposition to NICS grants clear. Giving the states’ money to modernize and send records to the FBI creates “a duplicate system to what the [federal] government is already doing,” he says. “Why would the states have to get involved?”

Update: An earlier headline (“Congress Is Sitting on More Than $1 Billion That Could Improve Federal Gun Background Checks”) has been changed to better reflect the mechanics of federal spending.

[Photo: Flickr user Jeff Kubina]