Drug Testing

As part of a deal approved Friday to extend the payroll tax cut and unemployment benefits through 2012, Congress has given its okay to allow states to drug test people applying for those benefits. The move, initially opposed by Democrats, came after the Democratic leadership bowed to Republican pressure in its eagerness to get the bill passed.

Republicans had initially called for drug testing for everybody seeking unemployment benefits, but Democrats balked before backtracking and agreeing to allow testing for those who lost their jobs because of drug use and those applying for jobs in industries where drug testing is prevalent.

It's worth noting that people fired from their jobs for drug use are fired "for cause" and not laid off for lack of work, and thus are ineligible for unemployment benefits anyway. But the provision allowing for drug testing in industries where it is common could expose hundreds of thousands of unemployed workers to drug tests before they could receive unemployment checks. None of those workers was laid off because of drug use.

The deal effectively moves the burden of drug testing from employers, who freely decide whether they think testing has more benefits than costs, to state governments and their taxpayers -- at least in those states that decide to use the new tool. Drug testing is also more likely to be imposed on lower skilled workers than on white collar workers because those sectors are where drug testing is most prevalent now.

Democratic lawmakers downplayed the extent of drug testing about to be foisted on laid-off workers, while Republicans said they would be widespread. The bill requires the Labor Department to draft regulations to determine who will be subjected to drug testing. Those subject to drug testing will be those unemployed workers "for whom suitable work as defined under the state law is only available in an occupation that regularly conducts drug testing as determined under regulations issued by the Secretary of Labor," a Democratic staffer explained to the Huffington Post.

"I think it's a small percentage," Rep. Sander Levin (D-MI), ranking Democratic in the House committee overseeing unemployment insurance, told the Post.

But Republicans cited employer surveys to argue that drug testing would be widespread, with one survey reporting that 84% of employers required drug tests for new hires.

"That's total nonsense," said Levin. "No way 80%."

But while Democrats and Republicans quibbled over how many jobless workers would be forced to endure the intrusive and humiliating ritual, the Drug Policy Alliance was clear and concise in its opposition to the move.

"This policy is a terrible one-two punch to the gut for thousands of struggling Americans," said Bill Piper, the group's national affairs director. "Congress has paired a generous taxpayer subsidy for corporations that drug test with a slap in the face for those struggling to find work, feed their families and keep their homes. The American people have a right to be upset over being forced to subsidize the violation of their civil liberties, when they try to access a program that they pay for with every paycheck. Drug testing is expensive and ineffective, and distracts from evidence-based policies that actually reduce the problems associated with drug use and misuse."

Awash in a whirlpool of proposals to subject welfare recipients to drug tests, legislators in two states, Missouri and Tennessee, are proposing that legislators themselves should undergo drug tests. In Missouri, a welfare drug testing bill was signed into law last year, while in Tennessee, a plethora of drug testing bills are currently before the legislature.

They are only two of about three dozen states that have seen drug testing bills aimed at welfare recipients, recipients of unemployment benefits, or other public beneficiaries introduced in the past year. But they are among the first to see the push expand to target legislators.

In Missouri, Rep. Rick Brattin (R-Harrisonville) has introduced House Bill 1225, which would require members of the General Assembly to undergo random, suspicionless drug testing at their own expense during the legislative session. Members who test positive for illegal drugs or drugs not lawfully prescribed would be immediately removed from office and barred from seeking elected office again for two years.

"Hardworking taxpayers don’t want their money to be subsidizing other people’s drug use," said Rep. Ellen Brandom (R-Sikeson) last year, explaining her push to test welfare recipients.

What's good for the goose is good for the gander, said Rep. Brattin.  "I think we should live by the same standard we are asking others to live by," he told the Kansas City Star. "Our salaries are paid by taxpayers, so we should assure them we aren't using that money on drugs."

The bill has been assigned to the House General Laws Committee, but it has not yet been scheduled for a public hearing.

Meanwhile, across the Mississippi River in Tennessee, two Democratic legislators, state Rep. Johnny Shaw and state Sen. Reginald Tate, are backing a bill, House Bill 2433 and its Senate companion bill, SB 3524, which would require the speaker of each chamber of the general assembly to develop and implement a drug testing program for legislators and staff.

Under the bills, state legislators and staff would be subjected to random, suspicionless testing for drugs and alcohol. A positive test result or a failure to take the test would be referred to the leadership of the chamber for disciplinary action.

They said the bill was in response to numerous Republican bills calling for drug testing for welfare recipients, workman's compensation recipients, state employees, private sector employees, and even making it a crime ("internal possession") to fail a drug test.

"I don’t think lawmakers should ever vote to make any laws they don't first and foremost abide by," Shaw told the Associated Press. "My question is, what lawmaker would not vote for it?"

House Majority Leader Gerald McCormick (R-Chattanooga) might be one. He told the AP drug testing legislators wasn't his highest priority. "Most people would like to see people who don't work for their government paychecks to get tested first," he said.

The bills to drug test politicians make for good statehouse politics, but even if they were to pass, they are probably doomed. In a 1997 decision, Chandler v. Miller, the US Supreme Court threw out a Georgia law requiring drug tests for elected officials, saying it violated the Fourth Amendment's proscription against warrantless searches.

In Tallahassee, drug testing fever seems to know no bounds. Companion bills that would mandate random, suspicionless drug testing of state employees were on the agenda last week, and both passed out of committees in their respective chambers. Republican legislators also used the bills to attack state workers collective bargaining rights.

The latest legislative drug testing effort comes even as a state law passed last year to force welfare applicants and recipients to pass drug tests has been temporarily blocked by a federal court pending a final decision and as Republican Gov. Rick Scott's executive order last year to drug test state employees is in limbo awaiting litigation.

This week's drug testing bills, House Bill 1205 and Senate Bill 1358, would give state agencies the option of randomly drug testing their employees quarterly. Bill supporters argued that the legislation would give state agencies the ability to drug test workers just as private employers do.

"State employees are not different from other employees," and should be subjected to drug tests just like private workers, said state Sen. Alan Hays (R-Umatilla), the sponsor of the senate bill.

The bills authorize state agencies to require all employees to submit to periodic random drug testing and would allow them to fire workers who test positive or mandate they undergo drug or alcohol treatment at their own expense.

The bills also remove "the definition of the term 'safety-sensitive position'" and remove "provisions limiting the circumstances under which an agency may discharge an employee in a special risk or safety-sensitive position." And for good measure, the bills "delete provisions relating to public employees' collective bargaining rights for drug testing."

Some members of the committee said they were concerned the bill could be challenged on constitutional grounds, but they were outvoted. The House bill passed out of the Government Operations Committee on a 9-4 vote, and the Senate bill passed out of the Health Regulation Committee on a 6-1 vote. Both bills face further committee votes before going to the floor.

We are only a few weeks into the new year, but statehouse politicians across the country are already racing to see who can be next to introduce a bill that would require drug testing of people receiving public benefits. Within the last month, measures that would impose drug testing requirements have been introduced or are being contemplated in at least twelve states.

The bills typically require beneficiaries to pay for their own drug tests (to be reimbursed later if they come up clean) and force those who test dirty off the rolls for specified periods. They also typically require a period of drug treatment at the would-be beneficiary's expense.

Faced with serious budget deficits as the economy continues sputtering through a weak recovery, would-be populists and small government conservatives see public benefits recipients as easy targets in their battle to ease the burdens of the taxpayers. With many Americans struggling hard to make ends meet, the narrative that welfare recipients or people receiving jobless benefits are just lazy junkies living resonates in some quarters.

Never mind that there is a paucity of evidence that welfare or jobless benefit recipients use drugs at a rate different from the public at large -- at the high end, a Michigan program a decade ago had 10% of welfare recipients testing positive for drugs, while Florida's now halted welfare drug testing program reported only a 2% positive rate, mostly for marijuana, though with data too incomplete at that stage to really know -- drug testing bills remain extremely popular, especially among conservatives.

It's not just Republicans. Although conservative Republicans dominate the legislative politics of drug testing the poor, in two states, Democratic legislators are leading the charge, and in one, it's a Democratic governor who is coming up with the idea.

But no matter the party, the rhetoric of the drug testers is remarkably similar. It's almost like they're reading from the same script.

"The working man, we're all subject to drug testing, and if they're gonna take the hard earned person's money and give it to someone on welfare, I think they ought to be tested the same way," Iowa Rep. Richard Arnold told WHO-TV in Des Moines as he announced his bill to drug test people on unemployment.

"If a job applicant has to take a random drug test, it only seems fair that a welfare applicant should too," said Georgia Rep. Doug McKillip (R-Athens). "We simply cannot allow the drug trade to be funded with government benefits," he told the Athens Banner-Herald. McKillips added that he wanted to apply any savings from the bill to paying for a tax cut on energy for manufacturers.

"If any of my employees fail a drug test, they're going to be fired," said Georgia Rep. Ron Stephens, a Savannah pharmacy owner and Republican Chairman of the House Economic Development and Tourism Committee. "It's leveling the playing field," Stephens insisted to 11 Alive TV in Atlanta. "It's making those recipients be subject to the very same regulations as those getting up going to work for a living," he added.

"Why in God's green pastures would we ever allow $1 of tax-supported assistance to go to an individual that is using illegal drugs?" South Dakota Rep. Mark Kirkeby (R-Rapid City) told the Rapid City Journal.

"I don't think any taxpayer in our state would say they're okay with funding a person's illegal drug use," Rep. John Mizuno (D-Kalihi Valley), who chairs the Human Services Committee, told KHON2-TV in Honolulu. Mizuno has introduced a pair of bills to drug test welfare recipients. "As taxpayers we need to save all we can, we don't need to raise people's taxes."

Such tropes have drug reformers, civil libertarians, and advocates for the poor crying foul. They accuse those pushing for drug testing of engaging in stereotyping and scapegoating.

"We feel like there's an ideology at work here, a sort of anti-welfare mentality intersecting with the drug war mentality," said Jill Harris of the Drug Policy Alliance. "They're using a budget crisis saying they want to reduce benefits for drug users as a way of pushing the drug war agenda."

"We look at it as basically another way to scapegoat the unemployed and blame them for the terrible economy they're in," said Rebecca Dixon, a policy analyst at the National Employment Law Project.

"There is really no point to this," said Dixon. "There is no evidence that unemployed workers are more likely to use drugs than anyone else. You have to have a solid work history to qualify for unemployment insurance, and you have to be actively searching for work. These are people who were working but lost their jobs, and now we're trying to treat them like they're something different. This feeds into really ugly stereotypes and could cause employers to not want to hire unemployed workers. There's already been some discrimination, and this doesn’t help the situation."

If legislators want to see a drug-free work force, said Dixon, there's already a way to do that. "If employers want to drug test workers, they can, and nearly half of them have pre-employment drug screening," she said. "They can do that already without the government stepping in."

Despite lingering questions about the constitutionality of mandatory suspicionless drug testing, bills are being filed or discussed that would require mandatory testing of welfare recipients in Georgia, Hawaii, Kentucky (also includes state medical assistance), Massachusetts, Mississippi (all public benefits, plus prove US citizenship), South Dakota, and Tennessee.

In Iowa and in South Carolina, bills mandating suspicionless drug tests for people receiving unemployment benefits are being bruited, while in West Virginia, a bill that would require mandatory drug tests for workers in state-sponsored job training programs has been proposed.

Although the Supreme Court has not directly addressed the constitutionality of suspicionless drug testing of people receiving government benefits, a divided federal appeals court threw out an earlier Michigan mandatory drug testing law on the grounds that it violated the Fourth Amendment's proscription of warrantless searches almost a decade ago. More recently, last year a Florida federal district court judge hinted strongly she would rule the same way as she granted a temporary injunction halting Florida's mandatory welfare drug testing law. A decision on whether to permanently throw out the law has yet to be made.

While the legal precedents may not be binding, they do allow advocates to make a strong case that such suspicionless drug testing laws are open to legal challenge, which has helped blunt most of them in past years. Last year, for example, although at least a dozen states took up mandatory drug testing bills, only Florida's passed.

"The courts have said you can't treat everyone as a criminal because he or she is seeking public benefits," said Rana Elmir of the ACLU of Michigan, which successfully challenged the state's last attempt at mandatory drug testing of welfare recipients and which is keeping a close eye on bills moving again there now. "You don’t lose your constitutional rights just because you're poor," she said.

"The ACLU thinks the courts have been very clear that mandatory suspicionless drug testing is unconstitutional, and it's also unfair and relies on mean-spiritedness and employs the ugliest stereotypes of the disenfranchised," said Elmir. "It's part of an unrestrained attack on poor people."

Some drug testing legislators have finally wrapped their heads around the notion that going with mandatory, suspicionless drug test language is a constitutionally risky business and are moving toward legislation that would require drug testing only of subsets of the population where a "reasonable cause" to suspect drug use can be cited. Bills using reasonable cause to test benefit recipients have already passed in Arizona, Indiana and Missouri.

Legislators in Georgia and Hawaii are hedging their bets by filing reasonable suspicion bills alongside mandatory welfare testing bills, while in Michigan, the health department has just done a study of reasonable cause testing, and in Pennsylvania, there is an ongoing pilot program for reasonable cause testing of welfare recipients. Both the Michigan and Pennsylvania measures should lead to efforts to pass broader reasonable cause bills later this year.

The move to reasonable cause drug testing bills means advocates cannot afford to rely on the courts as much as they do when confronting mandatory drug testing bills. And that means fighting the measures at the statehouse.

"This is forcing advocates like us to do a lot of defense," said Elizabeth Farid, deputy director of the National HIRE Project, which works to improve employment opportunities for people with criminal records. "We don't have the resources to move progressive bills forward and we're spending a lot of time trying to stop bad things like this happening. On the other hand, this really goes to the values of those conservatives and Tea Party members who've been behind the introduction of most of these bills," she noted.

"Bills that specifically target, for example, people who have a conviction for a drug felony might pass constitutional muster because that could be considered a basis for suspicion," said Farid. "But whenever you have the specter of drug testing, you have to ask if it is really effective. Is it worth the time and money? We often don't even get to that."

"We need to look at this as a public policy issue," said the ACLU of Michigan's Elmir. "Let's go to the experts and look at best practices. Those experts recommend that if Michigan is to have drug testing, it invest in training public employees to appropriately screen and identify those with addictions and help them through expanded treatment programs. Drug screening paired with expanded treatment has worked in other states," she said.

"We have to fight these bills, we have to educate our legislators and other elected officials, not only about the constitutional issues, but also about the way past programs have failed," Elmir said. "We like to believe our elected officials have good intentions in trying to help residents who use drugs, but mandatory testing is both ineffective and fiscally irresponsible. If Michigan must adopt drug testing, it should be guided by constitutional norms and focus on recovery rather than punishment."

Welfare or jobless benefits drug testing bills not only test the poor, they test the values of the nation, Elmir said.

"When we look at our Constitution, it embodies the value that our laws apply fairly and equally to all, irrespective of one's individual wealth," said the ACLU of Michigan's Elmir. "This is an important moment for these states contemplating these laws. It's our moment to set the standard for how we treat our most vulnerable residents. I hope we're on the right side of history."