Firearms-Related Appropriations Riders

Firearms-Related Appropriations Riders

November 22, 2019
Firearms-Related Appropriations Riders
Congress’s spending power gives it substantial control over
CDC officials said that after the restriction was
the activities of executive branch agencies. For instance,
enacted, the agency interpreted it as a prohibition of
through appropriations riders, Congress can direct agencies
activities related to gun control advocacy, but not as
to engage, or to refrain from engaging, in particular
a restriction of activities that supported firearm
activities in order to receive appropriated funds. Over the
injury-related data collection and scientific
years, Congress has inserted several firearms-related riders
research. However, CDC officials added that the
into appropriations bills. Perhaps the most well-known
agency has limited its firearm-related research over
riders are the Dickey and Tiahrt Amendments, in reference
time because, in 1997, its budget was reduced by an
to the Members of Congress who first advanced them. Still
amount equal to what the agency had spent on such
in force today, these riders restrict agencies within the
research, and because it learned that further
Department of Health and Human Services (HHS) and the
reductions were possible if the research continued.
Department of Justice (DOJ) from engaging in certain
activities related to federal firearms regulation.
U.S. GOV’T ACCOUNTABILITY OFF., GAO-17-665,
P
The Dickey Amendment
ERSONAL FIREARMS: PROGRAMS THAT PROMOTE SAFE
STORAGE AND RESEARCH ON THEIR EFFECTIVENESS 20
For FY1997, Congress considered various ways of
(2017).
restricting the Centers for Disease Control and Prevention
(CDC) from certain firearms-related activities. A precursor
Though the National Institutes of Health (NIH) is also
bill to the eventual omnibus appropriations act proposed
subject to the Dickey Amendment, that agency reported
reducing the CDC’s budget by $2.6 million—the same
to the GAO that it does not view the Dickey Amendment
amount the CDC reportedly spent on gun violence research
as so limiting. See id. The GAO explained, “NIH
in the previous fiscal year. See H.R. REP. NO. 104-659, at
continues to have a broad research portfolio that
49 (1996) (Comm. Rep.). The funds remained intact in the
supports violence prevention, including firearm safety,”
omnibus appropriations bill, Pub. L. No. 104-208, 110 Stat.
albeit subject to funding instability. See id.
3009-244 (1996), but, in the accompanying report,
Congress earmarked the same dollar amount ($2.6 million)
In recent years, public officials have sought to clarify the
Dickey Amendment’s limiting effect. For instance, in a
for the study of traumatic brain injuries, H.R. REP. NO. 104-
863, at 1040 (1996) (Conf. Rep.).
January 2013 presidential memorandum to the Secretary of
Health and Human Services, Engaging in Public Health
Representative Dickey introduced a proviso stating that
Research on the Causes and Prevention of Gun Violence,
“none of the funds made available for injury prevention and
President Obama directed the CDC “to conduct or sponsor
control at the Centers for Disease Control and Prevention
research into the causes of gun violence and ways to
may be used to advocate or promote gun control.” Pub. L.
prevent it . . . consistent with applicable law and subject to
the availability of appropriations.” This directive
No. 104-208, 110 Stat. 3009-244 (1996). As a rationale for
implies
the measure, now known as the Dickey Amendment, he
that the executive branch did not interpret the Dickey
contended that the CDC’s previous recommendations
Amendment as precluding the CDC from studying gun
related to firearms “display[ed] an emotional antigun
violence altogether. That view is consistent with an
agenda” amounting to inappropriate “federally funded
explanatory statement incorporated into the FY2018
political advocacy.” 142 C
omnibus; Congress remarked that, notwithstanding the
ONG. REC. H16, 804-05 (daily ed.
Dickey Amendment, “the Secretary of Health and Human
July 11, 1996) (statement of Rep. Dickey).
Services has stated the CDC has the authority to conduct
research on the causes of gun violence.”
Congress has included the Dickey Amendment (or similar
Pub. L. No. 115-
language) in the CDC appropriations for each subsequent
141 § 4, 132 Stat. 348, 350 (2018); 164 CONG. REC. H2700
year. Since 2011, Congress has extended the funding
(daily ed. Mar. 22, 2018) (explanatory statement submitted
restriction to all agencies within HHS. See, e.g., Pub. L. No.
by Rep. Frelinghuysen).
115-245 § 210, 132 Stat. 2981, 3090 (2018); FY, 125 Stat.
786, 1085 (2011).
The House-passed appropriations bill for HHS for FY2020,
H.R. 2740, explicitly allocates $25 million to the CDC “for
firearm injury and mortality prevention research.”
HHS agencies disagree on exactly how much the Dickey
An
Amendment actually limits them from researching gun
identical amount was earmarked for NIH behavioral
violence. In a 2017 report to congressional requesters, the
research, and an accompanying House report explained that
Government Accountability Office (GAO) recounted the
this should include research to prevent self-directed
CDC’s interpretation of the Dickey Amendment:
violence, but firearms were not expressly mentioned. See H.
REPT. 116-62 (2019). At the same time, however, a
provision of the bill applicable to these sections contains
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Firearms-Related Appropriations Riders
Dickey Amendment language: “None of the funds made
As relevant here, the Antideficiency Act prohibits agencies
available in this title may be used, in whole or in part, to
from spending money in excess of statutory appropriations
advocate or promote gun control.”
made by Congress. That is, if Congress has not legislated
money to an agency for a particular purpose, the
The Tiahrt Amendments
Antideficiency Act bars the agency from expending funds
The Tiahrt Amendments are a series of riders attached to
for that purpose. See 31 U.S.C. § 1341(a). When an agency
appropriations for the Bureau of Alcohol, Tobacco,
discovers that it has violated the Antideficiency Act, it must
Firearms and Explosives (ATF) and the Federal Bureau of
report the violation to the President and Congress, and the
Investigation (FBI) within the DOJ. First introduced in
report will be forwarded to the Comptroller General. 31
2003 and amended over time, today the Tiahrt Amendments
U.S.C. § 1351. A government employee or official who
are understood as prohibiting the ATF from engaging in
willfully violates Section 1341 may be fined up to $5,000,
various firearms-related activities. First, the agency is
imprisoned for up to two years, or both. 31 U.S.C. § 1350.
barred from “consolidating or centralizing” records
Government employees who violate the Antideficiency Act
maintained by federal firearm licensees (FFLs). Second, the
may also face adverse personnel actions, including
agency cannot disclose to anyone (1) the contents from the
suspension without pay or termination. 31 U.S.C. § 1349.
Firearms Trace System database maintained by the National
Trace Center, which tracks the movement of firearms
When Congress specifies how an agency should spend its
recovered by law enforcement, or (2) information in records
statutory appropriation in an accompanying report, the
that FFLs must keep or report under 18 U.S.C. § 923(g),
specification is legally binding on the agency only if
including when subjected to legal process in civil actions,
Congress incorporates the report by reference in the
with exceptions for law enforcement and national security
appropriation statute. Otherwise, the report language is
purposes. Third, the ATF cannot implement a regulation
merely an expression of the committee’s or Congress’s
that would require FFLs to take a physical inventory of
expectations on how an appropriation will be spent. Still,
their businesses. Finally, the FBI must destroy identifying
although there may not be legal consequences (e.g.,
information submitted during a background check within 24
criminal penalties tied to violating the Antideficiency Act),
hours of notifying an FFL that a firearm transfer may
an agency that declines to follow Congress’s appropriations
proceed. See Pub. L. No. 113-6, 127 Stat. 198, 248 (2013);
recommendation may face political consequences for the
Pub. L. No. 112-55, 125 Stat. 552, 609-10, 632 (2011); Pub.
agency. Thus, when the report accompanying the omnibus
L. No. 108-199, 118 Stat. 3, 53, 95; Pub. L. No. 108-7, 117
in the Dickey Amendment’s inaugural year instructed the
Stat. 11, 433 (2003).
CDC to spend the same amount of money it had spent
studying gun violence on a specific, different research
Congress added so-called futurity language to the Tiahrt
endeavor, the CDC could have suffered negative political
Amendments, so they are viewed as permanent restrictions
consequences if it had ignored Congress’s stated
on the ATF and FBI unless Congress legislates to eliminate
expectation.
them. See U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-
464SP, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, ch.
Under 31 U.S.C. § 3529, however, certain agency officials
2, §§ E.1-E.2 (4th ed., 2016 rev.). This differs from the
may ask the GAO (through delegation by the Comptroller
Dickey Amendment, which expires each fiscal year and
General) for an advanced decision about whether a planned
must be inserted in each new HHS appropriations bill for
use of funds fits within a particular appropriation. For
the funding restriction to continue.
example, if the CDC is unsure about whether a particular
study may violate the Dickey Amendment by “advocat[ing]
Legal Implications
or promot[ing] gun control,” the agency may ask the GAO
An agency or official subject to the Dickey or Tiahrt
for an advanced decision advising the agency on whether
Amendments may face legal or other repercussions for
the planned use of funds is permissible. Likewise, the ATF
failing to adhere to their restrictions. The Constitution
could ask the GAO whether using certain computer
declares that “No Money shall be drawn from the Treasury,
technology to store certain firearms records would, when
but in Consequence of Appropriations made by Law.” U.S.
installed, constitute “consolidating or centralizing” FFL
CONST. art. I, § 9, cl. 7. In other words, the federal
records in violation of the Tiahrt Amendments.
government cannot spend money unless Congress exercises
its Article I spending power to appropriate money for a
In any case, for as long as the Dickey Amendment language
particular purpose. Several federal statutes, including the
is included in HHS appropriations, and unless Congress
Antideficiency Act, support Congress’s power of the purse
legislatively alters the Tiahrt Amendments in the future,
by making it unlawful to spend in excess of appropriations.
Congress’s appropriations riders will continue to limit these
Moreover, an agency that spends money in a way that
executive agencies’ firearms-related activities.
deviates from the purpose, amount, or period specified by
Congress may risk offending its appropriating committees,
Mainon A. Schwartz, Legislative Attorney
potentially inviting informal or formal consequences from
lawmakers. These consequences are discussed below.
IF11371

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Firearms-Related Appropriations Riders

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