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Andrew Cuomo’s Trumpian War on the NRA

Is New York’s governor abusing his powers to fight the gun lobby?

Drew Angerer/Getty Images

The American Civil Liberties Union last week joined a closely watched court case, taking sides with a national advocacy organization against a powerful New Yorker who’s accused of enacting a retaliatory and unconstitutional policy. For once, this person wasn’t President Donald Trump.

The ACLU’s latest opponent is Andrew Cuomo. In May, the National Rifle Association sued the New York governor on First Amendment grounds, alleging that he’s trying to force the gun-rights organization into financial ruin by pressuring banks and insurance companies into severing their business ties with it.

Cuomo is far from the only Democratic politician who is openly hostile to the NRA. But the NRA believes the governor went too far by using New York’s regulatory agencies to intimidate the state’s financial sector into blacklisting the organization. The NRA says the move has caused “tens of millions of dollars in damages” and could leave it “unable to exist” or to “pursue its advocacy mission,” as Rolling Stone first reported earlier this month.

The governor responded with a sarcastic tweet that the organization would be in his “thoughts and prayers,” and has asked the federal court considering the lawsuit to dismiss it. Last Friday, the ACLU filed a brief urging the court to reject Cuomo’s request. Cuomo thus has achieved something of a miracle in the Trump era: uniting the organization most vociferously opposing the president with the one that helped elect him.

“There are acceptable measures that the state can take to curb gun violence,” David Cole, the ACLU’s legal director, wrote last week. “But using its extensive financial regulatory authority to penalize advocacy groups because they ‘promote’ guns isn’t one of them.” Multiple conservative media outlets took note of the ACLU’s intervention in the case, often with an air of surprise at the unlikely alliance. Most of the mainstream outlets that covered the lawsuit earlier this month ignored or did not notice the latest development.

That omission is unfortunate. Cuomo is widely believed to be interested in running for president in 2020. He and his fellow hopefuls will likely be running as the antidote to Trumpism. But Cuomo’s campaign against the NRA suggests that he could wield power in a manner that’s eerily similar to the current president.

The legal battle began in the fall of 2017, when New York’s Department of Financial Services launched an investigation into Carry Guard, a NRA-sponsored insurance policy that covers legal costs if a policyholder faces any civil or criminal liability in using a lawfully owned gun. The DFS announced its inquiry amid pressure from Everytown for Gun Safety, a gun-control organization that opposes the NRA, to investigate the program. Everytown argued that the policies violated New York laws that bar insurance companies from providing coverage that would cover criminal-defense costs, a conclusion with which DFS eventually agreed.

Cuomo had already carved out a reputation for hardline rhetoric toward the National Rifle Association. In 2014, he said that conservatives who defend civilian assault weapons “have no place in the state of New York.” The following year, he accused the NRA of defending the Second Amendment rights of people on the government’s no-fly list. Sometimes he matched his words with actions: After the Sandy Hook massacre in 2013, New York passed the NY SAFE Act, which Cuomo has touted as among the nation’s strictest gun-control laws.

There’s nothing wrong with DFS regulating insurance policies in its jurisdiction. Nor is there anything inherently amiss about Cuomo’s public criticism of the NRA, and vice versa. Things didn’t really begin to go awry, according to the NRA, until the spring of 2018. In the lawsuit, the organization claims that insurance providers began to cut ties with them under covert pressure from state regulators. Lockton Companies, the Carry Guard provider that worked with the NRA for two decades, told the organization it would have to end the relationship or risk losing their New York licenses.

Days later, the NRA says, a major New York insurance company dropped out of negotiations to serve as the organization’s corporate carrier after learning about Lockton’s decision and the alleged threats against it. The NRA’s lawsuit claims that it has subsequently struggled to find a provider for insurance policies it needs to function, such as general-liability insurance to cover its day-to-day operations as well as media-liability insurance for NRA TV, the organization’s streaming service.

The alleged campaign against the NRA came at a pointed moment for the organization. Two weeks before Lockton’s decision, a teenage gunman shot and killed 17 students and teachers at Stoneman Douglas High School in Parkland, Florida. The massacre revived America’s intermittent debate about the Second Amendment and re-energized gun-control activists, who led a wave of boycotts against the NRA’s corporate partners. Cuomo leaped into the fray by urging lawmakers in other states to resist the organization’s political power and adopt more stringent measures like the SAFE Act.

In April, Cuomo took more aggressive steps. He formally directed DFS Superintendent Maria Vullo, a former aide for the governor, to urge New York companies to “weigh [the] reputational risk” of their business relationship with the NRA. “The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety,” Vullo wrote in her formal guidance to state businesses.

The statements don’t actually direct any businesses to cut off ties with the NRA. At most, they are phrased as sternly worded advisory notices. But such words from a state financial regulator are hard to ignore, especially when the governor is backing them up explicitly. “The NRA is an extremist organization,” Cuomo wrote on Twitter the following day. “I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.”

It’s a nice business you’ve got there, the governor seemed to be saying to Wall Street. It’d be a shame if something were to happen to it. In May, a few weeks after DFS sent the notices, state regulators announced consent orders against Lockton Companies and Chubb Group Holdings related to the Carry Guard program; both companies were barred from working with the organization in the future. According to the NRA, the one-two punch of the advisory notice and the consent orders sent a chilling effect throughout its business relationships.

“The NRA has spoken to numerous carriers in an effort to obtain replacement corporate insurance coverage; nearly every carrier has indicated that it fear transacting with the NRA specifically in light of DFS’s actions against Lockton and Chubb,” the NRA said in its lawsuit. The organization also alleged that New York’s tactics had “imperiled the NRA’s access to basic banking services,” and claimed that multiple banks withdrew from negotiations because they feared that “any involvement with the NRA ... would expose them to regulatory reprisals.”

This may sound like great news to the NRA’s opponents. But Cuomo’s tactics would anger liberals if used against organizations with which they align. It’s not impossible to imagine a hardline Republican governor taking similar steps with state financial regulators to blacklist legal-aid groups that represent undocumented immigrants, or nonprofit organizations that advocate for reproductive rights, or even the ACLU itself. “Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear,” the ACLU wrote last week. “If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes.”

To that end, the organization urged the court to allow the NRA’s lawsuit to proceed to the fact-finding and discovery stages. “If the NRA’s allegations were deemed insufficient to survive the motion to dismiss, it would set a dangerous precedent for advocacy groups across the political spectrum,” the group warned. “Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny. And it is extremely difficult, if not impossible, for any advocacy group to operate effectively without routine access to basic banking and insurance services.”

Cuomo himself is not being subtle about his goals. In interviews with news outlets earlier this month, he described the NRA’s lawsuit as frivolous and downplayed the scope of DFS’s actions. (The governor’s office did not respond to a request for comment for this article.) Elsewhere, he’s even more boastful about his efforts. “New York is forcing the NRA into financial crisis,” he wrote on his official Facebook account earlier this month. “It’s time to put the gun lobby out of business. #BankruptTheNRA.” In an earlier post, he declared, “We’re forcing the NRA into financial jeopardy. We won’t stop until we shut them down.”

The remarks almost seem designed to prove his critics right. Indeed, the NRA cited those posts and others like them to help demonstrate Cuomo’s intent to violate the organization’s First Amendment rights. This may sound familiar. Last year, Trump made legally self-injurious comments on Twitter and elsewhere about his ban on travel from several Muslim-majority nations, and some were cited by lower courts when ruling against its constitutionality. There’s a vast moral difference between these cases, but both share a common thread: using the state’s tremendous powers to inflict deliberate harm on a disfavored group. It’s doubtful that Democrats can truly defeat Trumpism by adopting it for themselves.