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The Making of Obama’s Gun Plan: Political Calculus and False Starts Limited Options for Tougher Action

The idea to expand background checks by clarifying the “engaged in the business” rule for private sellers was in development for most of the president’s second term. Did its release come too late?

On January 8, 2015, Barack Obama travelled to Arizona to mark the fourth anniversary of the shooting of former Congresswoman Gabrielle Giffords. He was joined on the trip, as he usually is, by Valerie Jarrett, one of his closest advisors. The event took place in a high school gym. Prior to addressing the gathered crowd, Obama and Jarrett ducked into the school’s locker room to meet privately with Giffords, her husband Mark Kelly, and Peter Ambler, who runs the couple’s gun violence prevention organization, Americans for Responsible Solutions, or ARS.

Sitting on benches normally occupied by sweaty athletes receiving pep talks, the advocates tried to spur another kind of comeback. They urged the president to reconsider taking executive action to shrink the so-called gun show loophole by clarifying who is considered “in the business” of selling firearms, and therefore required to seek a license and conduct background checks on buyers. The White House had effectively shelved a draft of the proposal for years. But now pressure from Giffords and Kelly and other activists — and a relentless stream of high-profile shootings — was about to wrench a new version loose.

Obama arrived early for the meeting to find Giffords passing the time by jokingly trying out exercise machines. But when the conversation began, the former representative was all business. Gun violence prevention advocates had spent most of Obama’s administration with little direct access to the president, and Giffords was well aware of her unique status as a spokesperson for the issue. She and Kelly used the meeting to press the president and his aides to consider a revised approach on enforcing the “engaged in the business” law.

Obama liked the idea. He turned to Jarrett and “said that they should look at it,” Ambler recalled. “That catalyzed a lot of the action that happened over the next few months.”

Almost exactly a year later, Giffords, Kelly, and Ambler sat in the White House’s East Room as Obama announced a push to get more private sellers to register and run background checks. “Anybody in the business of selling firearms must get a license and conduct background checks, or be subject to criminal prosecutions,” Obama said. “It doesn’t matter whether you’re doing it over the Internet or at a gun show. It’s not where you do it, but what you do.”

The White House’s meticulously orchestrated roll-out of the plan continued that first week of January with a primetime CNN town hall and a New York Times op-ed. But little more than month later, there are strong signs that the administration’s effort to crack down on gun sellers who are engaged in the business may amount to little actual change. The implementation of the plan, the Times has reported, amounts to little more than “an updated web page and 10,000 pamphlets that federal agents will give out at gun shows.” Former officials in the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) don’t expect the executive action to increase the number of private gun sellers charged with violating the engaged in the business rule.

When Obama chose to kick off his final year in office with executive actions on gun violence, the timing seemed significant. The president had promised last fall to use what was left of his presidency to “make sure there’s sustained attention paid” to gun violence, and there he was, delivering. But it’s also possible to conclude that as Obama took the dais on January 4, the president and his team had already waited too long. The 12 months that elapsed between the powwow in the Phoenix gym and the East Room speech were part of a meandering journey filled with false starts and shaped by shifting White House priorities that rarely placed reducing gun violence on the top of the list. By the time Obama unveiled the plan, the entire team of White House aides that had formulated an earlier, more potent version of the push to crack down on unlicensed sellers had left the administration. One described years of reminding distracted superiors that the proposal existed.

Originally conceived as a federal regulation with the power of law, the iteration Obama announced in January is just guidance from the ATF. Sarah Bianchi, a former senior vice presidential aide who oversaw the creation of an early draft of the proposal, told USA Today that the version she worked on in 2013 “was stronger. No doubt about it.” To be sure, executive actions are a gold-sealed invitation to bring lawsuits, and so any administration carefully crafts such measures before their release. But by waiting so long to move forward, Obama and his White House limited their options for meaningfully increasing gun safety, until all that was left to do was offer a heartfelt speech unveiling a move unlikely to change the status quo.

In 2009 and 2010, President Obama was at the height of his popularity and at the helm of a party controlling both chambers of Congress. But directing some of that political muscle to strengthening firearms restrictions was not on his agenda. Consumed by post-recession economic stimulus, financial reform, and health care expansion — and influenced by aides convinced that the issue was a political loser for Democrats — the president declined to fight for passage of tougher gun laws. Instead, he signed legislation that included National Rifle Association-backed provisions allowing firearms in national parks and on Amtrak trains. The 2010 election, which gave Republicans control of the House, foreclosed the chance of Congress passing new gun reforms.

The December 14, 2012 shooting at Sandy Hook Elementary School dramatically shifted the political calculus. Overnight, can’t be done became have to try. Five days after the massacre, Obama appointed a task force led by Vice President Joe Biden to propose legislation and executive action aimed at curbing gun violence.

The group held 22 meetings, mostly in the second week of January 2013, receiving input from pro-gun groups, gun violence prevention advocates, clergy members, and other stakeholders. Sources involved said they could not recall who specifically first suggested executive action on the definition of who is engaged in the business of selling guns, but it was during those sessions that the idea was put on the table.

Hobbyists are allowed to occasionally sell guns, and a private citizen need not register as a gun seller unless he or she makes a livelihood dealing in firearms. But as the ATF noted as early as 1999, the ambiguity of what it means to be engaged in the business allows some vendors to sell a high volume of guns without being federally licensed — and without the legal obligation to conduct background checks on their customers.

Biden’s gun team determined that an executive order clarifying what it means to be engaged in the business could limit that workaround while ensuring that more gun buyers would undergo background checks.

Drafting the proposal was a team of vice presidential aides led by Bianchi and Biden’s chief of staff, Bruce Reed. But much of the responsibility fell to junior policy staffers including Tobin Marcus, who joined Biden’s office shortly after graduating from Brown in 2008, and Stefanie Feldman, a 2010 Duke grad who was the vice president’s assistant director for policy.

As the White House weighed its options, officials considered imposing the change by taking advantage of formal rulemaking processes in the ATF. That approach would have resulted in a final rule issued by the administration. To undo that regulation, a Republican president would need to start a new rule-making process, or win passage of legislation.

The early plan would also have designated someone as engaged in the business of selling guns based on a sales threshold. Aides considered minimums ranging as low as 25 guns sold per year that would automatically trigger the designation.

But in early 2013, the White House faced a choice. The other prong of its post-Sandy Hook push centered on an effort to get the Senate to bring private sales and internet gun purchases into the background check system through new legislation. Issuing an executive order revising the engaged in the business rule would have the benefit of ensuring something got done, but that fix would be less effective than what could be done through Congress. Moving forward via presidential powers would also dramatically weaken the imperative to advance a bill, and leave Obama exposed to accusations of presidential overreach and the near certainty of lawsuits that might reverse any changes he wrought.

When Obama announced a slate of 23 executive actions on January 16, 2013, the engaged in the business plan was left off the the list. The White House bet on public sentiment to carry a background check expansion the Senate, where Democrats at the time held a 53-seat majority.

Obama and Biden were joined by Gabby Giffords and family members of victims of gun violence in the Rose Garden on the day the Senate defeated Manchin-Toomey. (Photo: Win McNamee/Getty Images)

Instead, months passed, and public pressure for reform faded. On April 9, West Virginia Democrat Joe Manchin and Pennsylvania Republican Pat Toomey finally reached a deal on a bill strengthening background check rules. But while the duo had been hashing out their proposal, the NRA rallied its mailing list and elbowed wavering senators into the “no” column. On April 17, Manchin-Toomey fell five votes short of a filibuster-proof Senate majority (then-Majority Leader Harry Reid voted against it for procedural reasons). “A bill could have passed in January, in the first few weeks after Newtown. But by April it was too late. People were already getting over it,” one advocate who helped craft the bill said.

Over the next few months, Senate Democrats said they would hold additional votes on the plan. But by July, Reid alerted advocates that he was pulling the plug due to insufficient support.

When the engaged in the business plan was first put on the drawing board, it received only a preliminary legal vetting. But with a congressional option now off the table, Obama’s lawyers renewed an effort to “scrub what kinds of authority” they had to boost background checks, according to a source who worked in the White House at the time. While the team in Biden’s office tweaked the plan, Attorney General Eric Holder and Chief White House Counsel Kathryn Ruemmler determined in late 2013 that the president had the authority to issue an executive order asking for a formal rulemaking declaring anyone selling more than 50 guns a year was engaged in the business of selling firearms, according to the Washington Post.

Distracted junior White House staffers were polite but not eager to push executive action on guns. ‘It was never the right time,’ said one activist.”

But the plan drew criticism from outside the White House. Lower level lawyers in the Department of Justice and the ATF argued that setting a sales threshold for the engaged in the business designation might not withstand inevitable lawsuits. The ATF also argued that the rule would be difficult to enforce and might only affect a few gun dealers, the Post reported. (An ATF spokesman declined to comment for this article.)

Agency opposition was not the only obstacle to the proposal. As fallout over the Manchin-Toomey vote faded, the White House’s focus had shifted to immigration reform. The Senate passed a sweeping immigration bill in June 2013. But that issue too was delayed when the House didn’t act on the Senate bill. Pro-immigration groups pressured Obama to overcome the gridlock through executive action, but endangered Democratic senators convinced the administration to delay until after the 2014 midterm elections. During the subsequent months, the issue monopolized the attention of staffers who might otherwise have kept executive action on gun laws moving forward.

Personnel turnover was yet another impediment. Reed and Bianchi, who had become champions of the engaged in the business plan, both had left their jobs in Biden’s office by May 2014.

“That made a huge difference,” said a former vice presidential aide, as gun issues now became largely the purview of junior staffers still just a few years out of college. Feldman, one of the holdovers from the original team, deferred law school admission to stay in Biden’s office and did much of the work to keep the proposal alive through 2014. With the gun issue stuck on the back burner, she finally left for Yale Law School last summer after an unusually long four-year tour at the White House (younger staffers usually stay two years at most). Sarah Berlenbach, another staffer in her mid-twenties who had worked for Mayors Against Illegal Guns, an early incarnation of Everytown for Gun Safety (a seed donor to The Trace), was hired in 2014 and became the staffer that reform advocates met with in the White House.

Amid the personnel churn, policy expertise and institutional memory suffered. One former vice presidential aide described regularly reminding new staffers that the administration still had unused tools for combatting gun violence. “Every four or five months, I’d have another conversation about the ‘engaged in the business’ rule,” the aide said.

Advocates for tougher background check laws recalled meeting in late 2013 and 2014 with distracted junior White House staffers, who were polite but not eager to push executive action on guns. “It was never the right time,” said one activist.

A person who worked on the issue at the White House said the delay was not unusual: Getting a proposal from the “policy development” to execution stage often takes years. “It just didn’t get to the stage where we were ready to go out the door with it,” the former staffer said.

“We made steady progress from the time we began looking at the issue until the proposal was issued,” the former staffer added. “It took time to put together.”

By the time Giffords and Kelly met with Obama in the dingy Arizona locker room, the engaged in the business idea had evolved. Giffords’s proposal, which also reflected work by the Center for American Progress and Everytown for Gun Safety, dropped the idea of defining someone engaged in the business of selling guns based on minimum number of annual sales. The new proposal instead set up a series of criteria, such as whether sellers have business cards or a website, that could be collectively assessed to apply the definition. Supporters consider that approach harder to challenge in court.

With Jarrett onboard, the idea now had a powerful backer to shepherd it through the White House. Still, the proposal advanced at a slow pace.

Then the country entered what one frustrated advocate called the “summer of mass shootings.”

On June 17, a 21-year-old murdered nine parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, using a .45-caliber Glock handgun. In a speech memorializing the dead, President Obama did not mention any policies he might pursue.

In adopting the White House’s own nascent plan, Clinton took a stance popular with Democrats while leaving Obama looking comparatively cautious.”

High-profile shootings — in Lafayette, Louisiana; Chattanooga, Tennessee; on a live local news broadcast outside Roanoke, Virginia — continued throughout the summer and into the fall. On October 1, a 26-year-old student fatally shot nine people at Umpqua Community College in Roseburg, Oregon. The procession of slayings, along with epidemic rates of gun violence in cities like Chicago and Baltimore, seemed to increase the urgency in the White House.

“You could almost see in the President’s response to each of these incidents, him growing more and more frustrated and more and more firm about wanting to do something,” said Chelsea Parsons, who works on guns policy for the Center for American Progress. “That’s when we started to hear movement toward commitment to take action from his advisers.”

Obama’s frustration appeared to boil over after the Umpqua rampage. Making his 15th address marking a mass shooting, Obama lamented the fact that these speeches had “become routine,” and he made an unusually pointed appeal. “What is also routine is that somebody, somewhere will comment and say ‘Obama politicized this issue,’” he said. “This is something we should politicize. It is relevant to our common life together.”

The White House cast the speech as a turning point on guns. According to the Los Angeles Times, Obama had rejected his prepared remarks when delivering those pointed words. “I’m just going to riff off it,” he told staffers beforehand. “I’m pissed.”

In that speech, Obama said he had asked his staff to consider what authorities he had “to more effectively to keep guns out of the hands of criminals.” But it would take one final push to force White House action.

Advocacy groups had also been pressing Hillary Clinton’s presidential campaign to adopt the engaged in the business proposal as part of her platform on gun violence. They had an inside man: At the beginning of her campaign, Clinton hired Corey Ciorciari, an NYU law student, as a policy advisor. Ciorciari was versed in gun policy. He had worked on the issue for Chicago Mayor Rahm Emanuel and was doing a stint at Everytown for Gun Safety when the group was consulted by the White House and the engaged in the business rule was first widely discussed. 

Clinton was already tacking to the left on gun control, broaching the subject after the Charleston shooting. By the fall of 2015, Clinton had seized on guns as a way to fend off the surprisingly strong challenge by Vermont Senator Bernie Sanders, whose pro-gun votes were seen as a potential vulnerability with liberal Democratic primary voters.

On October 5, Clinton rolled out her own gun policy proposals, in which she promised that, if elected, she would issue an executive order aimed at unlicensed dealers. Her move increased pressure on the Obama administration to use its own powers.

In adopting the White House’s own nascent plan, Clinton took a stance popular with Democrats while leaving Obama looking comparatively cautious. Her announcement “was felt in the White House,” said an ex-White House staffer still in touch with former colleagues. (Clinton campaign spokesman Josh Schwerin declined to discuss the politics behind Clinton’s plan, simply noting she is “strongly supportive of President Obama’s executive actions.”)

Articles in the Washington Post and Politico made exactly that point, noting that the Obama team had in fact been mulling the engaged in the business idea for years. In the Politico article, Arkadi Gerney, a senior vice president at the Center for American Progress, said that the “attention of the administration has shifted away from guns” since the Manchin-Toomey vote. Gerney also noted that the Department of Justice had not cracked down on states that fail to report information to the National Instant Criminal Background Check System. The stories, fueled by frustrated advocates anxious for executive action, annoyed Obama aides.

By November, the White House had shifted responsibility for the issue from the junior policy aides to what one person familiar with the process called “the A-Team” — lawyers in the White House Counsel’s office who could polish the executive actions and senior staffers who could press the ATF and other agencies to go along. But now new considerations again kept the orders from moving full steam ahead. Congress was debating a budget deal, and the Obama administration worried that the executive actions could be thwarted by Republicans who would introduce legislative riders barring federal funds from being used to implement the plan.

Issuing the actions before the budget deal “would have made it more difficult to get other measures through,” said former congressman Jim Moran, a Virginia Democrat.

Before Christmas, Congress passed a budget bill that funded government for the remainder of Obama’s presidency. On January 4, Obama announced the actions without fear of congressional Republicans blocking it.

Gun control advocates and former White House aides lament that the Obama administration missed a chance to act sooner: Taking advantage of the ATF’s rule-making process to produce a stronger crackdown on unlicensed sellers would likely have required more than a year to complete, making it an impractical option for a president headed into his final 12 months.

But some experts agree with the assessment of Clinton, who said that Obama “has gone as far as he could.” Others see value in that fact that after years of federal gridlock on expanding background checks, something finally got done. CAP’s Parsons still thinks a more binding rulemaking is needed on unlicensed gun sellers. But she is glad Obama took a first step in that direction. “This will have real-world impact,” she said. “It fills a knowledge gap in terms of what this law and regulation mean.”

At the president’s final State of the Union, a seat was left empty in the First Lady’s box to honor gun violence victims. At the start of his remarks, Obama named the issue as one he was going to focus on in his last year. He did not return to the subject for the remainder of his address.

Clarification: This article initially stated that Manchin-Toomey fell six votes short of a filibuster-proof majority. In terms of actual support, however, the amendment was only five votes short of such a majority: Majority Leader Harry Reid was in favor of the bill but voted against it for procedural reasons. We have updated the piece to include that information.

[Top photo: The White House]