In January, when Democrats assumed control of both chambers of Congress for the first time in nearly a decade, they gained the ability to bring gun reform bills up for a vote, something former GOP Majority Leader Mitch McConnell refused to do.
But the party is still nine votes short of the 60-vote supermajority needed to pass legislation in the Senate in the event of a filibuster. Unless Democrats in the upper chamber move to abolish the 60-vote rule — a prospect that appears increasingly unlikely — gun reform could remain a casualty of partisan gridlock.
Nevertheless, lawmakers and anti-violence advocates remain hopeful, buoyed by President Joe Biden’s aggressive gun policy platform and broad public support for tighter gun laws. Key Senate Democrats tell The Trace that a lot has changed since a universal background check measure failed after the mass shooting at Sandy Hook Elementary School — and they’re banking on the belief that it’s become politically risky for Republicans to oppose gun reforms.
“Fighting gun violence has become not only good policy, but good politics,” said Senator Richard Blumenthal of Connecticut, who’s pushing several pieces of gun reform legislation.
Republicans are in the minority. Why isn’t that enough to enact gun reform?
While Democrats hold a majority in the Senate, it’s as slim as it can be, with only one vote. There’s no guarantee that they will vote along party lines. In 2013, four Democrats bucked their party and voted against a bill that would have expanded background checks to private gun sales, known as Manchin-Toomey. Four Republicans crossed party lines to vote yes, but only two of those lawmakers remain in the Senate. “It’s going to be hard to pass much of anything,” Senator Chris Murphy of Connecticut tells The Trace.
A more formidable obstacle to gun reform is the filibuster, which allows lawmakers to delay a vote on a bill. If the filibuster were abolished, Democrats could pass gun reform with a simple majority. But not every Democrat is on board — including West Virginia Democrat Joe Manchin, a longtime proponent of expanding background checks. As long as the filibuster stands, Democrats need 60 votes for most legislation.
“If they lose the filibuster [battle], they’re lost,” John Donohue, a Stanford Law School professor, said of Democrats’ prospects of passing reforms. “I think it’s the only way that Biden can have an effective presidency.”
For now, though, it’s here to stay. “The filibuster is unlikely to be eliminated anytime soon,” said Blumenthal. “Right now, there simply aren’t the votes to eliminate it. That’s not to say we can’t make progress on gun violence.”
But Steven Smith, the Kate M. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, said that if Republicans repeatedly hold up action on bills that are important to Democrats, “we may end up seeing the attitudes of a few Democrats changing on the filibuster.”
The new configuration will empower moderates. What are the chances that they might support gun reform?
With the majority so slim, conservative Democrats and moderate Republicans will wield the most power. That’s because their votes could mean the difference between a bill’s passage or failure.
Behind the scenes, moderates seem receptive to gun reform. “I’ve talked to a lot of Republicans who are interested in having a discussion about finding a version of a comprehensive background checks bill that they can support,” Murphy said.
Whether that translates into votes is another story. “Clearly, Democrats would be under pressure [to reject reforms] in certain states,” Donohue said. “But the politics are such that, overwhelmingly, people — including NRA members — want universal background checks.”
Moderates like Manchin and Pennsylvania Republican Pat Toomey, who sponsored the failed post-Sandy Hook background check legislation, haven’t given up on the legislation that bears their name. Of the four Republicans who voted for Manchin-Toomey in 2013, two are still in office: Toomey and Susan Collins of Maine. Plus, Senator Mitt Romney of Utah, who assumed office in 2019, has come out in favor of universal background checks.
Smith says Republicans may soften on gun reform because they don’t want to lose the white, college-educated suburbanites who have traditionally been the backbone of the party.
What’s changed since Manchin-Toomey?
Democratic candidates for federal office began running on gun reform rather than backing away from it. Heading into the 2018 midterms, gun control was regarded as the third rail of American politics. But that changed after the school shooting in Parkland, Florida, which spawned a nationwide, student-led movement to reform gun laws. That fall, more than two dozen Republican House members aligned with the National Rifle Association were defeated. “It’s just such a bad vote for Republicans to be on the wrong side of background checks,” Murphy said.
The defeat of Manchin-Toomey also triggered a wave of financial support for nonprofit gun reform advocacy groups, including Giffords, Everytown For Gun Safety, and Moms Demand Action. With each new public mass shooting, their ranks swelled. “Each of these tragedies has given voice and face to survivors who have helped to advocate for this cause,” Blumenthal said, “and their activism is having results, especially in the state legislatures.”
What other measures might muster bipartisan support?
Laws that don’t restrict gun ownership but instead seek to incentivize responsible behavior might be particularly appealing in the current climate, lawmakers and experts said. One example is Ethan’s Law, introduced by Blumenthal and Murphy on February 3, which would penalize gun owners who have unsecured guns around children and adults who can’t legally possess them. “There’s a reason why we are moving first on this bill as part of an overall strategy: it’s noncontroversial,” Blumenthal said. “It’s not about gun ownership, it’s simply about safe storage.”
T. Christian Heyne, the vice president of policy at the gun reform group Brady, said a federal red flag law, which would allow law enforcement and family members to petition a judge to disarm potentially dangerous people, has a decent chance of gaining bipartisan support in the Senate. “In the last four or five years, we’ve seen five Republican governors sign these into law,” he said. “Lindsey Graham held a hearing on [red flag] laws that was really powerful. And the Republican witnesses were seemingly all in support of this policy.” Nineteen states have already passed some form of a red flag law; Graham’s plan would incentivize additional states to adopt them.
One sign that Republicans have become more receptive to gun reform came in 2019, when Congress agreed to set aside $25 million to fund gun violence research. That was done through the budget appropriations process, a detail Heyne says is key: “Republicans have shown an interest in how to better understand the problem on the whole and the budget process gives them the ability to sort of work in the margins and work together to get there.” Heyne said Congress can use the budget appropriation process to create funding streams beyond research, like gun violence intervention programs.
Smith says a criminal justice reform bill, which Democrats have advocated for, “could provide a vehicle for some action on guns: ‘While you’re reforming the FBI and the Justice Department activity in that area, you might as well do something on background checks.’”
Does the National Rifle Association still hold sway over lawmakers?
Senate Democrats say no. They point not just to the gun group’s diminishing influence after Parkland but also its recent bankruptcy, which followed allegations of financial misdeeds by the New York State Attorney General’s Office. “The grip of the gun lobby on Congress has been broken,” Blumenthal declared at a recent press conference.
Murphy is even more dismissive of the gun lobby. “The NRA, which was hyper-powerful in 2013, is in a meltdown,” he said. “So the politics surrounding the issue of gun violence are fundamentally different today, which means the vote’s going to look different.”
Murphy goes so far as to say that the gun violence prevention movement is as powerful now as the NRA was after Sandy Hook. “In 2013, no Republicans were fearful of crossing the anti-gun-violence movement,” he said. “Lots of Republicans are going to be fearful of crossing the movement in 2021.”
Smith disputes that. Gun violence prevention groups haven’t been at it nearly as long, he said, or invested as much money. “These large groups on the conservative side, including the NRA, have become kind of mini-political parties,” recruiting political candidates and turning out ads “at a moment’s notice,” he said.
The NRA’s current legal problems “both reduce the effectiveness of the NRA’s appeals to its own members, and therefore undercut the credibility of a threat to mobilize against elected officials,” Smith said. Whether that hampers their influence over the political process “is yet to be tested,” he said.
But Heyne points to one place where that has already been tested: Virginia. “The NRA has not won a statewide election in Virginia for more than 10 years,” he said. “The politics in Virginia, where the NRA is headquartered, have fundamentally changed because of the gun issue.” He says the NRA’s waning influence can be seen nationally as well: “I don’t think that there are great stories for the NRA in any of these election cycles that have happened recently.”
The NRA spent $25.8 million in the 2020 election cycle. That’s half of what it spent in 2016 — but the organization still spent more than gun reform groups.
Looming even larger than the gun lobby may be Trump’s base. Will lawmakers risk upsetting these pro-gun voters?
While Donohue says the political risks for Democrats who openly support gun reform are probably few, Republicans must contend with the “mad crowd element” unleashed by former President Donald Trump.
Biden’s interest in gun reform has already become a rallying cry for militias, mirroring a phenomenon at the state level: Lawmakers in states where guns are allowed in capitol buildings say the public hearings that most often attract armed protesters are the ones where gun laws are being debated and voted on.
There will also be competition to capture Trump’s base. Republicans who cross party lines on guns might lose those voters in 2022.
Blumenthal points to polling that shows that the vast majority of gun owners and even NRA members support reforms. “Our goal is not to rile the Trump base,” he said. “It’s simply to accomplish good policy.”
The open question, Smith says, is whether Trump-aligned factions can “generate viable threats to incumbents through the recruitment of challenges in primaries. It’s reasonable to think that that just hasn’t disappeared because Trump disappeared.”
If the Senate is hopelessly gridlocked, is there anything else the federal government can do to reduce gun violence?
Senate Democrats could advance gun reform legislation via the budget reconciliation process, which allows the Senate to pass tax and spending bills with a simple majority vote. Blumenthal says Ethan’s Law has a good chance of passing that way.
Budget reconciliation has never been used to pass a gun measure before, so it would set a precedent if Democrats go this route. As Smith put it: “Democrats are thinking far more creatively about this process than they have in the past.” There are also things President Biden can do, as we reported in November. He can appoint a permanent director for the Bureau of Alcohol, Tobacco, Firearms and Explosives for the first time in nearly a decade. He can also use executive action to create an interagency task force on gun violence prevention, and the ATF can use its rulemaking authority to regulate certain types of weapons and accessories, like ghost guns. Murphy said the White House could also consider “executive actions regarding the definition of licensed gun dealers that could expand the number of sales that are subject to background checks.”
Correction: An earlier version of this article incorrectly stated that the vice president can cast a vote to end a Senate filibuster.