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New York’s Favor To McConnell

Letitia James speaking at a campaign event.
Letitia James at a campaign event, September 2013. Photo by Matt Cohen.

Last week’s move by an ambitious New York politician to dissolve the National Rifle Association must have elicited smiles in Washington. Smiles, in particular, from Mitch McConnell’s florist and Chuck Schumer’s office painter.

Surely the wily Sen. McConnell, a Kentucky Republican, sent flowers to New York Attorney General Letitia James to acknowledge her boost to his efforts to hold on to the GOP Senate majority. Meanwhile, Schumer may have damaged his office wall, not to mention his fist, in frustration. He was ready to measure the drapes in McConnell’s suite in anticipation of replacing him as majority leader next year. But now James, who – like Schumer – is a Democrat with Brooklyn political roots and big political dreams, chose to get in the way.

There are nine Republican-held Senate seats in eight states in play this fall, as counted by the nonpartisan Cook Political Report. Because Democrats are apt to lose a seat they hold in Alabama, they need to pick up at least four of the nine vulnerable GOP slots to gain Senate control, assuming their party also captures the White House. If President Donald Trump is reelected, the Democrats must go five for nine.

Those contests will be in Arizona, Colorado, Georgia (two seats), Kansas, Iowa, Maine, Montana and North Carolina. James’ assault on the NRA is guaranteed to energize a solid base of gun owners in those states – not all of whom are reliably Republican voters. Not only will these voters see their Second Amendment rights challenged, but they will also recognize a Democratic agenda designed to strip their ability to advocate that right’s importance.

James’ suit came, remarkably, as Schumer and House Speaker Nancy Pelosi were arm wrestling with Republicans over tens of billions of dollars to bail out pandemic-hammered states, notably Schumer’s New York and Pelosi’s California. Even Democrats in swing House districts will have a hard time explaining to constituents why they would devote massive amounts of cash to fund a state government, like James’, that is attacking not only their access to weapons, but their political voice.

James’ suit also arrived while hundreds of thousands of New Yorkers were sitting in the dark for a third day after Tropical Storm Isaias did what storms typically do. As costly food supplies amassed amid the pandemic rotted in useless freezers and refrigerators, Gov. Andrew Cuomo berated the state’s utilities for failing to live up to their legal obligations. But the state’s top lawyer was busy tilting at the NRA windmill.

And James’ suit came at a time when countless affluent New Yorkers have decamped for greener pastures. They left to wait out the pandemic, or to avoid the state’s increasingly stultifying tax and regulatory climate. Schumer and Pelosi were also fighting to eliminate or loosen the cap on federal tax deductions that has made many of their states’ most productive cash cows more willing to relocate to those greener pastures. The change they seek would be another disguised subsidy from, say, Montana elk hunters to James’ NRA hunters.

New York politics is where marriages of pedestrian intellects and cosmic egos can live happily ever after. The state will have a gubernatorial election in two years. James – a former New York City councilwoman who contemplated a mayoral run before winning the attorney general’s office in 2018 – is in a strong position to succeed Cuomo if he does not run again. That tells you why she chose to go nuclear against the NRA, and why she chose to do it now. It was the best way to break through the political noise and draw attention to herself.

Incidentally, although probably not meaningfully, her suit also arrived while Joe Biden was seeking qualified female applicants, preferably nonwhite, to join his Democratic presidential ticket. Biden’s handlers will no doubt tell him to stay far away from James if he wants to carry swing states like Pennsylvania, where many rural schools still close on the first day of fall hunting season. In years when schools are open, that is.

Either James did not understand the broader implications of her move and its timing, or she did not care. She took advantage of the fact that the NRA is organized under New York’s nonprofit law, which gives her office broad oversight powers. The complaint itself and much of the news reporting about James’ lawsuit, filed in the friendly confines of state court, blasted the “charity” for misusing “donations.” Although the organization has not-for-profit status under federal and state tax law, it is not a charity for tax-deduction purposes. Its members – it counts around 5 million, although some outsiders dispute that figure – generally pay dues. In return, they can expect political advocacy as well as educational training, such as in gun safety programs, for which the NRA is a recognized leader.

The NRA has been under public and legal scrutiny for well over a year, amid allegations that it financed a lavish personal and professional lifestyle for its chief executive Wayne LaPierre and other senior leaders in the organization. Ordinarily, such investigations can lead to fines (or, in extreme cases of malfeasance, potential prison time) for executives or financial penalties for the organization. Investigations virtually never seek dissolution of the enterprise itself. If the underlying charge is that the fiduciaries’ conduct damaged the organization, what sense does it make to respond by killing the organization altogether?

It only makes sense if the goal is not to punish the behavior, but the enterprise. That is exactly James’ goal. When she was running for attorney general, James referred to the NRA as a “terrorist organization” in an interview.

That was a remarkable statement to hear from a graduate of Howard University’s law school, where civil rights law may be studied more closely and revered more highly than anywhere else in this country.

It was another Howard University law graduate, Robert Carter, who established the right of Americans to freely associate via a not-for-profit organization to advance their political and social beliefs. In NAACP v. Alabama – a case that went to the Supreme Court four times – Carter overcame Alabama's efforts to bar his organization from operating in that state and to demand access to its membership lists. He ultimately won that battle in a unanimous 1964 decision.

When you think of “freedom of association,” think of Robert Carter. Then think of Letitia James. And then smile, at least if you are Mitch McConnell’s florist.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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