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Drug Policy Prospects on Capitol Hill This Year [FEATURE]

There are nearly two dozen pieces of drug policy-related legislation pending on Capitol Hill, but given a bitterly divided Congress intently focused on the economic crisis and bipartisan warfare in the run-up to the 2012 election, analysts and activists are glum about the prospects for passing reform bills and even gloomier about the prospects for blocking new prohibitionist bills.

uphill climb for reform this year
But while drug reform in the remainder of the 112th Congress may take on the aspect of slow-moving trench warfare, there is work to be done and progress to be made, advocates interviewed by Drug War Chronicle said. And intensely expressed congressional concern over federal budget deficits could provide opportunities to take aim at the federal drug war gravy train.

Bills to reform drug policy or of relevance to drug policy reform this session run the gamut from hemp legalization, medical marijuana reforms, and marijuana legalization to various sentencing reform and ex-offender re-entry measures, as well as a pair of bills aimed at protecting public housing residents from eviction because a family member commits a drug offense. Also worth mentioning is Sen. Jim Webb's (D-VA) National Criminal Justice Commission Act of 2011, which, if it were to pass, would be a feather in the soon-to-be-retiring senator's cap.

On the other side of the issue, the most intense prohibitionist fervor this session is centered around banning new synthetic drugs, with five bills introduced so far to criminalize the possession and trade in either synthetic cannabinoids ("fake weed"), or synthetic stimulants ("bath salts"), or both. Other regressive bills would ban anyone with a drug arrest from owning a gun and require states to drug test welfare recipients. A hearing on welfare drug testing is reportedly coming soon. Conservative Republican-controlled House foreign affairs and national security committees could also see efforts to boost drug war spending in Mexico or other hard-line measures in the name of fighting the cartels.

[To see all the drug policy-related bills introduced so far in Congress, as well as legislation introduced in the states, visit our new Legislative Center.]

While advocates are ready to do battle, the political reality of a deeply divided Congress in the run-up to a presidential election in the midst of deep economic problems means drug policy is not only low on the agenda, but also faces the same Republican House/Democratic Senate gridlock as any other legislation.

"The inertia is not exclusive to sentencing or drug policy reform," said Kara Gotsch of the Sentencing Project. "Nothing is moving. There is such a deadlock between the House and the Senate and the Republicans and the Democrats in both chambers. I don't think failure to move in this Congress is necessarily a sign of limited interest in reform, but the political fighting means nothing moves."

"The House is passing stuff with no expectation it will pass the Senate," said Eric Sterling, executive director of the Criminal Justice Policy Foundation. "The whole Congress right now is in a state of suspended animation, waiting to see whether Obama is reelected or not and whether the Senate goes Republican or not. The gridlock we all see in the headlines around big issues such as taxes and spending filters down to almost every committee and every issue."

And with Republicans in control of the House, the prospects for marijuana law reform in particular are grim in the short term, the former House Judiciary Committee counsel said. "I don't think there is going to be any positive legislative action," Sterling predicted. "The House is not going to take up the medical marijuana bills and it's not going to take up the Frank-Paul legalization bill. They won't even get hearings."

"I don't think any of these marijuana bills will pass with this Congress, but they're very important as placeholders," agreed Morgan Fox, communications director for the Marijuana Policy Project. "As long as those bills are out there, we can keep bringing the issue in front of lawmakers and continue to educate them about this."

Even stalled bills provide opportunities for advancement, Sterling concurred. "That's not to say there isn't important education that can be done, and organizing and encouraging members to cosponsor good legislation. They need to be educated. The test of whether the effort is worthwhile or not is whether it can be passed this session," he offered. "The political stars are not lined up.

Jim Webb at 2007 hearing on incarceration (photo from sentencingproject.org)
Medical marijuana legislation in Congress includes a pair of bills aimed at making the financial system friendlier to dispensaries and other medical marijuana-related businesses, as well as a bill that would reschedule marijuana for prescription use:

  • Introduced by Rep. Jared Polis (D-CO), H.R. 1984, the Small Business Banking Improvement Act of 2011, would protect financial institutions that accept medical marijuana deposits from federal fines or seizures and having to file "suspicious activity" reports. Such threats have prompted major banks to stop doing business with dispensaries.
  • Introduced by Rep. Pete Stark (D-CA), H.R. 1985, the Small Business Tax Equity Act of 2011, would allow dispensaries to deduct expenses like any other business and is designed to avoid unnecessary IRS audits of dispensaries and put an end to a wave of audits already underway.
  • The marijuana rescheduling bill, H.R. 1983, the States' Medical Marijuana Patient Protection Act, would also specifically exempt from federal prosecution people in compliance with state medical marijuana laws. It was introduced by Rep. Barney Frank (D-MA).

"We're having our grassroots support all three pieces of legislation, but our primary thrust is H.R. 1983," said Kris Hermes, spokesman for Americans for Safe Access. "It's tough to get people engaged at the federal level, but we've mounted a social media campaign and want to promote the bill through Facebook and other methods, getting some viral participation in something that should be important for most patients around the country."

Part of the group's difficulty in getting members to focus on Congress is because they are busy fending off assaults at the state and local level, said Hermes. "We've had many instances of state officials doing an about-face on implementation of state laws or further restricting them, so the battleground has become very focused and localized," he noted.

"That takes energy away from what's going on at the federal level, and that's the real tragedy because it's the federal government that's at the root of all the opposition and tension taking place at the local level," Hermes said, pointing to this year's spate of threatening letter from US Attorneys to elected officials. "Having to fight this locally takes energy away from what's going on at the federal level."

Aaron Smith of the National Cannabis Industry Association, the recently formed trade association for marijuana businesses, said his group was focused on the financial bills. "I'm not holding my breath on the Republicans in the House, but the very introduction of these bills is progress," he said. "For the first time, we're actually seeing some of the industry's issues addressed. We think we'll see more traction for these bills than the broader legalization issue. There's already an industry clamoring for regulation, and federal laws are getting in between states and businesses in those states. We will be seeing state officials supporting these reforms. It's hard to write a check to the IRS or state treasuries when you can't have a banking account."

While the association is not predicting passage of the bills this session, it will be working toward that goal, Smith said. "We can get more cosponsors and we will be working to raise awareness of the issue," he said. "Just a year ago, no one even knew about these problems, now they are being addressed, and that's progress in itself."

But Congress is not the only potential source of relief for the industry, Smith said. "It would be helpful if we could get a memo from the Department of the Treasury clarifying that businesses licensed under their respective state laws are not a banking risk," he continued, suggesting that the existence of the bills could help prod Treasury.

While acknowledging the obstacles to reform in the current Congress, Bill Piper, national affairs director for the Drug Policy Alliance, was more upbeat about the state of affairs on Capitol Hill. "I'm super-excited about the level of support for the Frank-Paul marijuana legalization bill," he said. "It has 15 cosponsors now, and when you consider that it is completely undoing federal marijuana prohibition, that's pretty remarkable. Three or four years ago, we couldn't even get anybody to introduce it. And I'm also pleasantly surprised by not only the number of cosponsors, but who they are. They include Reps. John Conyers (D-MI), Charlie Rangel (D-NY), and Barbara Lee (D-CA), three important members of the Congressional Black Caucus, and most recently, Rep. Raul Grijalva (D-AZ), a member of the Hispanic caucus."

In the event that the Democrats retake the House in 2013, Conyers would become chair of the House Judiciary Committee again, Piper noted. "We would have a cosponsor of a bill to end federal marijuana prohibition chairing that key committee," he said. Until then, Piper continued, "while the bill is gaining steam, it is unlikely to get a hearing in this Congress."

If the prospects are tough for marijuana reform in the current Congress, they aren't looking much better for sentencing reform, although the budget crisis could provide an opening, Piper said. "I'm not optimistic about sentencing reform, but DPA is advocating that it be added to the package of spending cuts and bills designed to reduce the deficit over the long term. If they're talking about reforming entitlements and the tax code, they should be talking about reducing unsustainable drug war spending," he argued.

The Sentencing Project's Gotsch said that while the Hill would be difficult terrain for the rest of the session, there is progress being made on the sentencing front. "The Sentencing Commission has been very good, and the Department of Justice has responded favorably to Fair Sentencing Act implementation. Justice supported retroactivity on crack, and it has also reversed course on prosecuting crack cases prior to August 2010," she said.

Even in the Congress, there are small signs of progress, she noted. "I am encouraged by things like federal good time expansion included in the Second Chance Act reauthorization. That has passed the Senate Judiciary Committee, and it even picked up one Republican vote. That's good, and that's a discussion we hadn't had before."

What Gotsch is not getting enough of is hearings, she said. "It's disappointing that there hasn't been more activity regarding hearings, but next month, the Sentencing Commission will hopefully release its mandatory minimum sentencing report, and I know the advocacy community will be pushing the Senate Judiciary Committee to hold hearings on that."

For Sterling, it is money that is going to move things in the current Congress. "According to the latest Sentencing Commission on federal drug cases, 26% of federal drug cases were marijuana cases," he noted. "With a federal drug supply reduction budget of $15.4 billion, you can argue to the Congress that if you were to pass the Frank-Paul legalization bill, you could save about $4 billion a year."

Sterling is making a similar argument to the deficit-tackling congressional Supercommittee about federal crack cocaine prosecutions. "I argue to them that if they eliminated federal crack cocaine prosecutions, which account for about 20% of federal drug cases, they could save $3.5 billion a year," he said. "Crack is made and sold locally; it shouldn't be a federal case. That should be reserved for people like Mexican cartel leaders."

But while Sterling's argument is logical, he is not sanguine about the prospects. "We could save billions of dollars a year, but I don't think something that gets translated as letting dope dealers out of prison is going to get very far. Still, it's a contemporary argument, and the money is real money. What is clear is that these expenditures are a waste; they're not keeping drugs out of the hands of the community or reducing the crime in the community, and the money could be better spent on something else."

Budget battles offer potential openings to drug reform foes as well. House Republicans are using budget bills to attempt to kill reforms they didn't like, such as opening up federal AIDS funding streams to needle exchange programs, said Hilary McQuie of the Harm Reduction Coalition.

"We have to fight this constantly in the House now," she said. "They're reinserting all these bans; they even put a syringe exchange ban rider in the foreign operations budget bill, so that's a new front, and we can't even fight it in the House. That means we have to make sure the Senate is lined up so these things can be fixed in conference committee. It feels to me like we can't make any progress in Congress right now."

McQuie said, though, that Congress isn't the only game in town. "We're looking less to Congress and more to the regulatory bodies," she said. "Obama's appointments have been pretty good, and just last week we had SAMHSA coming out with guidance to the state about applying for substance abuse block grants. This is the first big piece of money going out with explicit instructions for funding syringe exchange services. Even in this political atmosphere, there are places to fight the fight."

Where the Congress is likely to be proactive on drug policy, it's likely to be moving in the wrong direction. The ongoing panic over new synthetic drugs provides a fine opportunity for politicians to burnish their drug warrior credentials, and legislation to ban them is moving.

"I'm pessimistic about those stupid bills to outlaw Spice and bath salts," said Piper. "One bill to do that just sailed through the House Commerce Committee, and we're hoping it at least goes through Judiciary. The Republicans definitely want to move it, it went through Commerce without a hearing, and no one opposed it," he explained. "But we're working on it. Given that this is the 40th anniversary of the failed war on drugs, why add another drug to the prohibitionist model?"

"Those bills are going to pass," Sterling bluntly predicted. "There may be some quibbling over sentencing, but there's simply no organized constituency to fight it. DPA and the ACLU are concerned about civil liberties, but I don't think that's going to have much of an impact. I'd be very surprised if more than a handful of liberals vote against this."

That may not be such a bad thing, he suggested. "I'm quite willing to say that people who use these things should not be punished, but I'm not sure I want to defend the rights of people to sell unknown chemicals and call them whatever they want," he said.

Even though the evidence of harm from the new synthetics may be thin, it remains compelling, Sterling said, and few legislators are going to stand up in the face of the "urgent" problem. "Even if you argued that these drugs needed to be studied, the rejoinder is that we are facing a crisis. To challenge these bills is asking more courage of our legislators than our system tolerates."

The remainder of the current Congress is unlikely to see significant drug reform, in large part for reasons that have more to do with congressional and presidential politics than with drug policy. But that doesn't mean activists are going to roll over and play dead until 2013.

"People should continue to pressure members of Congress to get on the Frank-Paul legalization bill," urged Piper. "The more cosponsors we get, the more it helps with passing legislation at the state level, and it also helps with getting media on the issue and making it more likely that the bill will get a hearing. That's a top priority for us."

The budget issue also needs to stay highlighted, Piper said. "Whether it's Democrats or Republicans in charge, Congress is going to make cuts, and they should definitely be pressured to cut the drug war. We want the drug war on the chopping block. This is a unique historical opportunity with the recession and the focus on the budget cuts. We have to re-frame the drug war as not only failed, but too expensive to continue."

Washington, DC
United States

Veteran, ACLU Challenge Florida Welfare Drug Test Law [FEATURE]

Florida's new law requiring applicants for the Temporary Assistance to Needy Families (TANF) program to take and pass a drug test in order to receive benefits is being challenged by the American Civil Liberties Union of Florida (ACLUFL). The group filed a class-action lawsuit in federal district court in Orlando Tuesday arguing the new law was unconstitutional and seeking a temporary injunction to block its implementation.

Under the law, which passed Florida's House and Senate in April and May respectively, applicants can be denied public assistance for a year if they fail the drug test and denied for three years if they fail a second drug test. Persons who complete drug treatment can regain eligibility, and the children of people denied benefits can receive funds through a designated trustee.

https://stopthedrugwar.org/files/drugtest.jpg
drug testing kit
"It's our view that not only is this program unconstitutional and illegal, but it is a public policy that rests on ugly stereotypes," said ACLUFL executive director Howard Simon at a Wednesday morning press conference.

The lawsuit, Lebron v. Wilkins, names a Central Florida man, Luis Lebron, as the lead plaintiff. Lebron, a Navy veteran, single father, and University of Central Florida student who is looking for work, was denied TANF benefits after refusing to submit to a drug test. Lebron, who also cares for his disabled mother, did accounting and payroll work in the Navy and in the private sector before returning to college. He is expected to graduate with an accounting degree in December.

"Florida's new law assumes everyone who seeks public assistance has a drug problem," said Lebron. "They don't know that I'm in school right now so I can get a good job to provide for my son and mother, and it feels like they don't care. I have to prove to them that I'm not breaking the law. It makes me sick and angry that for no reason at all and no suspicion, I have to prove I'm not using drugs. The Fourth Amendment is part of the Bill of Rights, and it says no searches without probable cause."

The pivotal question, Lebron said, is whether the searches are reasonable. "Searches must be based on individualized suspicion," he noted. "In the Navy, I swore an oath to defend the Constitution. Now, I'm asking for the Constitution to defend me."

Florida Gov. Rick Scott (R) championed the new welfare drug testing law, arguing that welfare recipients used drugs at a higher rate than the population at large and that the law would save Florida taxpayers money. A number of similar bills have been filed in other states as well, and rumblings of Congressional hearings on the proposal have been heard inside the Beltway as well.

But so far the numbers have failed to borne out Scott's claims about welfare recipients or budget savings. A 1996 study of alcohol and illicit drug use by the National Institute on Alcohol Abuse and Alcoholism found that welfare recipients' use rates to be the same as the population at large. And according to Florida's Department of Children's Services, only about 2% of TANF applicants have tested positive for drugs in the new program so far. At that rate, the state will arguably save a few tens of thousands of dollars each year in a program that is budgeted at $168 million a year. But even those savings are debatable, given that it is difficult to factor in the costs of administering the program -- or defending it against legal challenges or individual claims of false positives.

The one clear winner in the welfare drug testing program is Florida's drug testing industry. Each TANF applicant must take a drug test at a cost of $30-35 and pay for it out of his own pocket. If the test comes back negative, the state reimburses the applicant. The net result is a transfer of funds from the TANF program to drug test providers.

https://stopthedrugwar.org/files/rickscott.jpg
Gov. Scott
But the ACLUFL lawsuit does not rely on a cost-benefit analysis. Instead, it relies on the argument, vetted in both federal appeals courts and the Florida courts, that suspicionless drug testing violates the Fourth Amendment's proscription against unreasonable searches.


"Our legal claim is straightforward and should come as no surprise to the state of Florida," said Maria Kayanan, the lead attorney in the case. "The only state in the country to try this in the past failed miserably. Throughout the session, legislative staff warned the legislature that this law raised legal challenges."

Kayanan was referring to Michigan, which enacted a law requiring suspicionless drug testing of welfare recipients in the 1990s. That law was overturned as unconstitutional by a federal district court judge in a decision upheld by the US 6th Circuit Court of Appeals.

"This is bad policy, it's a mess, and we hope the court recognizes that suspicionless drug testing absent a clear showing of risk to public safety violates the Fourth Amendment," she said.

Federal courts have held that government-imposed drug testing absent particularized suspicion is unconstitutional except in very limited circumstances. The courts have carved out exceptions allowing drug testing in occupations where the public safety is at risk, for law enforcement personnel involved in drug enforcement, and for high school students engaged in extracurricular activities, but that is as far as the federal judiciary has been willing to bend the Fourth Amendment to date.

"This is a slippery slope," said Randy Berg, executive director of the Florida Justice Institute, which is co-counsel in the case. "While implemented here to go after people in need of public assistance to protect their families, who is next? People who apply to get a fishing license? Contractors who contract with the state? It is very important that people see this as a slippery slope. That is why we have stepped forward to challenge this unconstitutional bill enacted by the legislature."

"After the Michigan law was struck down, a number of states have started rekindling this idea, but Florida was the first state to enact this," said Simon. "But this public policy that the legislature adopted at the urging of the governor is based only on ugly stereotypes and talking points. He keeps saying that taxpayers have a right to know their money is not being used to subsidize drug addiction. But this method is unconstitutional, and we are confident it will be found unconstitutional again."

In response to a question echoing a commonly heard plaint, Simon explained why workers in the private sector must sometimes submit to drug testing when welfare applicants do not.

"The government is bound by the Constitution and private employers are not," he pointed out. "Things that may be appropriate in the private sector are impermissible when done by the government. The governor is also a lawyer, but he must have slept through constitutional law."

"I served my country, I'm in school finishing my education and trying to take care of my son," Lebron said. "It's insulting and degrading that people think I'm using drugs just because I need a little help to take care of my family while I finish up my education."

Now, a federal court in Florida will decide if requiring Lebron to submit to a drug test, is not only insulting and degrading to him, but unconstitutional. With efforts to impose similar laws on welfare applicants and people seeking unemployment benefits underway in a number of other states and possibly Congress, this Florida case will have ramifications reaching far and wide.

Orlando, FL
United States

Video: Florida Welfare Drug Testing Debate

Far from saving the state money, Florida's new welfare drug testing law, promoted aggressively by Gov. Rick Scott, seems to be a budget buster. The law also seems likely to be found unconstitutional -- FoxNews's Megyn Kelly, host of the show "Kelly's Court," thinks so (as do we) -- and taking it through the courts to find that out will cost Florida taxpayers additional funds.

Unfortunately there have been a lot of these bills lately, this year and in other recent years. One more seems to be coming up in Ohio, and legislation may be coming up very soon in Congress -- we'll update here as soon as we know more.

Location: 
FL
United States

Few Florida Welfare Applicants Fail Drug Tests So Far

During his election campaign last year, Florida Gov. Rick Scott (R) campaigned on, among other things, cutting government spending by reducing the welfare rolls through drug testing. Welfare recipients were more likely than average citizens to be drug users, he claimed.

https://stopthedrugwar.org/files/drugtest.jpg
drug testing paraphernalia
Scott successfully pushed his welfare drug testing bill through the legislature, and the program went into effect July 1. But preliminary results undercut his claims of high drug use rates among people seeking welfare benefits and they suggest that the vaunted savings to taxpayers will not be very significant.

According to the Tampa Tribune, the state Department of Children and Families is reporting some preliminary numbers. So far, at least 1,000 applicants have undergone drug testing, and only 2% have failed their drug tests. Another 2% have, for reasons unknown, failed to complete the application process.

These numbers suggest that not only are Florida welfare recipients not a bunch of lazy junkies getting high on the backs of taxpayers, but that they actually use drugs at a significantly lower rate than the population as a whole. [Ed: Drug testing proponents might argue that the program is causing applicants to stop using drugs in order to quality for benefits. But that ideas squares neither with the "addict" characterization commonly made about welfare recipients nor the weeks that marijuana remains detectable in the bloodstream after its last use.]

According to the 2009 National Survey on Drug Use and Health, 8.7% of the population nationally over age 12 used an illicit drug in the previous month. The rate was 6.3% for those ages 26 and up. The 2006 national survey disaggregated usage rates by state and found a figure of 7.69% of people 12 and over using within the past month in Florida.

The ACLU of Florida, which is studying a lawsuit to challenge the constitutionality of the warrantless, suspicionless mandatory drug tests, told the Tampa Tribune the Florida law is based on stereotypes of poor people.

"This is just punishing people for being poor, which is one of our main points," said ACLU of Florida spokesman Dan Newton. "We're not testing the population at-large that receives government money; we're not testing people on scholarships, or state contractors. So why these people? It's obvious -- because they're poor."

These initial numbers also suggest that the welfare drug testing program will not be a big money saver for the state. Under the law, while welfare applicants and recipients must pay for the drug tests out of their own pockets, the state must reimburse those who test negative. At an estimated $30 a pop for the drug tests, that creates significant expenditures for the state.

Those expenditures are canceled out by the savings the state makes by not making welfare payments to those who test positive. If the current 2% positive test result rate holds true, the Tampa Tribune calculates, the state could save somewhere between $40,000 and $60,000 a year.

But that's a drop in the bucket in a program that is predicted to cost $178 million this year, and it doesn't include staff costs and other resources the state has expended to implement the program -- nor the cost if even one person testing positive ends up in an emergency room or courtroom as a result. And even the small savings projected by the Tribune could be wiped out by the cost of defending what is likely to be found an unconstitutional infringement on the rights of Florida welfare applicants and recipients to be free of unwarranted searches.

FL
United States

National Poll Finds Support for Welfare Drug Testing

A Rasmussen poll released this week found majority support for automatic drug testing of new welfare applicants and lesser, but still high, levels of support for drug testing people already receiving welfare benefits.

The poll comes as a new law Florida law mandating the suspicionless drug testing of welfare applicants and recipients is about to be implemented. Missouri has also passed a law requiring the drug testing of welfare recipients if there is "reasonable suspicion" to suspect drug use.

Bills to drug test welfare recipients have become increasingly popular as states face tough economic times and seek ways to tighten their belts, even though it is not clear that the costs of drug testing tens or hundreds of thousands of people would be offset by the savings generated by throwing drug users off the dole.

Such bills are also constitutionally dubious. A 1999 Michigan law subjecting welfare recipients to suspicionless drug testing was thrown out by the 6th US Circuit Court of Appeals in 2003 when the court found that it amounted to an unreasonable search and seizure under the Fourth Amendment.

But that doesn't stop politicians, and this Rasmussen poll suggests why legislators find supporting drug testing such an enticing position.

The national telephone survey of likely voters found that 53% believe all welfare applicants should be drug tested before receiving benefits.  Another 13% only supported random drug testing, while 29% said welfare applicants should only be tested if there was a reasonable suspicion they were using drugs.

That is a whopping 95% who said they thought welfare applicants should be drug tested either routinely, randomly, or upon suspicion. That high number may be an artifact of the poll design; the poll questions only gave those three options when respondents were asked about whether welfare applicants should be drug tested. Rasmussen polling is also reputed to tilt in the conservative direction, which could also skew the findings. But with such a high number, the the general meaning of the results seems clear.

Respondents were more divided when it comes to testing people who are already receiving benefits. Some 35% said recipients should be tested only where there is reasonable suspicion, 31% supported random drug tests, and 29% said all recipients should be regularly tested.

If welfare recipients are found to be using illegal drugs, 70% of respondents said they should lose their benefits. Only 15% said they opposed taking away benefits, while another 15% were undecided. Of those who said benefits should be ended, 58% said it should happen for a first offense, while 40% said there should be one or more warnings before cutting benefits.  [Ed: Much depends on how a question is asked. A poll question commissioned by this organization in 2007 which mentioned "recovery" and "families" found nearly 67% of likely voters opposed to revoking benefits.]

It looks like advocates of welfare rights and civil liberties will have to fight a massive public education battle to turn public opinion around on this issue affecting the lives of some of society's most vulnerable and least able to speak up for their own rights.

Mississippi Tea Partiers Push Welfare Drug Testing Initiative

Mississippi Tea Party groups are busily collecting signatures for a ballot initiative that would require welfare recipients and state employees to undergo drug testing. The measure, officially known as Ballot Initiative #33, is part of a broader push by Mississippi Tea Partiers against "un-Constitutional welfare programs" and illegal immigration. The initiative would also require anyone receiving state benefits to prove his or her US citizenship.

(image via wikimedia.org)
While the umbrella Mississippi Tea Party is playing a role in supporting the initiative campaign, most of the energy behind it appears to be based in the Mississippi Gulf Coast 912 Project, an influential South Mississippi Tea Party group affiliated with conservative former Fox News program host Glenn Beck's national 912 Project.

The Mississippi Tea Party sent a December letter to legislators demanding that they take action to drug test welfare recipients, act against illegal immigrants, reactivate the legislature's un-American activities panel, and nullify a number of federal programs under the rubric of state sovereignty, among other proposals. When the legislature failed to pass welfare drug testing, Ballot Initiative #33 was the result.

"Initiative #33 would amend the Mississippi Constitution to require that persons receiving public assistance, as well as state contractors, subcontractors, and state employees, must undergo random drug testing," says the initiative's official summary. "Failing two drug tests results in loss of benefits. Persons not currently receiving public assistance must pass drug testing before receiving benefits. This initiative also requires that persons residing in the state illegally are prohibited from receiving public assistance or state salary of any kind."

The initiative, a proposed constitutional amendment, is broader than the failed bill it substitutes for. It also includes state contractors, subcontractors, and employees.

The Mississippi Gulf Coast 912 Project needs to collect 90,000 valid voter signatures by mid-October, which is the deadline for getting the initiative on the 2012 ballot. If organizers can't gather 90,000 signatures by mid-October, but can get over the top by the next deadline, mid-December, they could qualify it for the 2012 ballot.

The random, suspicionless drug testing of welfare recipients was thrown out by a federal appeals court as unconstitutional -- a violation of the Fourth Amendment's proscription against unwarranted searches -- when Michigan tried it a decade ago. Another such program went into effect July 1 in Florida, and will face a similar constitutional challenge. If Initiative #33 is ever enacted, Mississippi taxpayers will be the next to have to defend an already invalidated program.

MS
United States

Florida Welfare Drug Testing Bill Signed Into Law

Florida welfare applicants and recipients, mostly women with children, will now have to undergo drug tests at their own expense to receive cash benefits after Gov. Rick Scott (R) signed into law a drug testing bill, HB 353, that passed the state legislature earlier this month. Scott also signed HB 1039, a law banning "bath salts," or new synthetic stimulant drugs.

Gov. Rick Scott (R) scores political points on the backs of the poor. (Image courtesy state of Florida)
More than 21,000 Floridians receiving benefits as heads of households will have to pay for and take the drug tests, as well as any new applicants. If they pass the drug test, they will be reimbursed for the cost. If they fail the drug test, they become ineligible to receive benefits for one year or until successfully completing drug treatment. Children of heads of household who test positive would still be eligible to receive benefits through a designated third party.

Scott and the Republican-controlled legislature argued that the law is necessary to stop welfare recipients from using the money to buy drugs. But opponents cited studies demonstrating that drug use is no more common among welfare recipients than among the general public.

"While there are certainly legitimate needs for public assistance, it is unfair for Florida taxpayers to subsidize drug addiction," Scott said in a press release. "This new law will encourage personal accountability and will help to prevent the misuse of tax dollars."

The ACLU of Florida was quick to attack the new law. It noted that the only other state law mandating suspicionless drug testing of welfare recipients -- one in Michigan -- was overturned by the federal courts in 2003 for violating the Fourth Amendment's proscription against unwarranted searches and seizures.

"Once again, this governor has demonstrated his dismissal of both the law and the right of Floridians to personal privacy by signing into law a bill that treats those who have lost their jobs like suspected criminals," said ACLU of Florida head Howard Simon in a statement Tuesday. "The wasteful program created by this law subjects Floridians who are impacted by the economic downturn, as well as their families, to a humiliating search of their urine and body fluids without cause or even suspicion of drug abuse."

Citing the Michigan decision, Simon continued: "Surely the governor knew this, and the ACLU testified in the legislature that the bill was a significant and unnecessary invasion of privacy. The new law rests on an ugly stereotype that was disproven by the state's own earlier experimental drug-testing program," he said. "Nevertheless, their zeal to score political points on the backs of Florida's poor once again overrode their duty to uphold the Constitution. Searching the bodily fluids of those in need of assistance is a scientifically, fiscally, and constitutionally unsound policy. Today, that unsound policy is Florida law."

Wednesday the ACLU of Florida announced it was filing suit against the governor over an executive order he issued earlier this year requiring suspicionless drug testing of state employees. At the same time, it promises an announcement soon about how it plans to respond to the welfare drug testing law. 

Tallahassee, FL
United States

Missouri Welfare Drug Test Bill Heads for Governor's Desk

A Missouri bill that mandates the drug testing of welfare recipients and applicants if case workers have "reasonable suspicion" they are using illegal drugs has passed out of the legislature and is now headed for the governor's desk. It passed the House Tuesday on a vote of 113-34. It had passed the Senate last month.

If you're on welfare in Missouri and the state suspects you use drugs, you will have to provide this. (Image via Wikimedia.org)
The bill, House Bill 73, also known as the "TANF Child Protection and Drug Free Home Act," requires Temporary Assistance for Needy Families (TANF) case managers to report to the Children's Division if an applicant or recipient tested positive or refused to take a drug test related to employment or employment training. Caseworkers would also have to report to the division if they have "reasonable suspicion to believe that such individual is engaging in illegal use of a controlled substance."

Failure to take or pass a drug test would make the recipient ineligible for TANF benefits for two years. But people who fail the test could enroll in a drug treatment program, and benefits would continue during treatment. If the person completes treatment and doesn't test positive, the benefits would continue. A second positive drug test would make the person ineligible for benefits for two years, with no provision for a treatment escape clause. Family members of someone declared ineligible because of drug use could continue to receive benefits through a third-party payee.

Foes of the bill argued that the bill was possibly unconstitutional -- although its use of a "reasonable suspicion" standard may make that argument more difficult -- that the program will be costly, and that it's an attack on society's most vulnerable.

The bill "targets low-income individuals, particularly women with children, said Pat Dougherty of the Catholic Charities of the Archdiocese of St. Louis. "We have women who come to our program and who are successful, who are getting their lives back together, who are trying to get straight, and yet, you've got a penalty there," he told KMOX News Radio last month.

Sen. Maria Chapelle-Nadal (D-St. Louis County) said she was concerned about the costs connected with the drug tests. Legislative analysts in Missouri estimated the program would cost up to $2.3 million.

"In Florida, they did about 9,000 tests and spent more than $3 million, while only 36 people were convicted," Chapelle-Nadal said.

But now, the Show Me State's Republicans get to look tough if not necessarily fiscally smart.

Columbia, MO
United States

Florida Legislature Passes Welfare Drug Test Bill

A bill requiring Florida welfare recipients to undergo drug tests passed the state Senate last Thursday. A similar measure has already passed the House. The bill was supported by Gov. Rick Scott (R), who is expected to sign it into law shortly.

(image via Wikimedia.org)
"It’s fair to taxpayers," Scott said after the vote. "They're paying the bill. And they're often drug screened for their jobs. On top of that, it's good for families. It creates another reason why people will think again before using drugs, which as you know is just a significant issue in our state."

Scott has already signed an executive order mandating drug tests for state workers. But Republican senators this week fended off bipartisan amendments that would have imposed drug tests for anyone working for a company that receives public funds and schoolchildren in the Bright Futures program. Those amendments were designed to sabotage the bill by spreading the net uncomfortably wide.

If Scott signs the bill into law, it is almost certain to face a constitutional challenge, and the challengers would have a strong case. The only other state to pass a suspicionless drug testing bill for welfare recipients, Michigan, saw its law thrown out by a federal appeals court in 2003 as an unconstitutional violation of the Fourth Amendment's protection against warrantless searches. Arizona has a welfare drug testing law, but that law requires probable cause before a drug test can be demanded.

The bill, House Bill 353, requires all adult applicants for or existing recipients of federal cash benefits -- the Temporary Assistance to Needy Families (TANF) program -- to undergo drug testing at their own expense. If they pass the drug test, the cost of the test is reimbursed by the state. The tests would screen for all controlled substances and recipients would have to disclose any legal prescriptions they have.

If recipients test positive, they lose their benefits for a year. If they fail a second test, they lose their benefits for three years. Children whose parents lose their benefits could still receive benefits if another adult is designated the payee on their behalf.

The bill is set to go into effect July 1, provided Gov. Scott actually signs it and no legal challenge has been filed by that date.

Tallahassee, FL
United States

Florida Welfare Drug Testing Bills Advance

Bills that would require new applicants for temporary welfare assistance to undergo suspicionless drug tests -- and pay for them themselves -- are advancing in the Florida legislature. On April 13, House Bill 353 passed the House Health and Human Services Committee. That same day, the Senate version of the bill, Senate Bill 556, won approval from Senate budget subcommittee. Both votes were party-line votes in the Republican dominated legislature.

Welfare recipients are the latest targets of Florida politicos. (Image via Wikimedia.org)
Under the legislation, applicants who fail a drug test would be barred from receiving cash assistance for one year. Failing a second drug test, would mean a three-year ban. Children of rejected applicants could receive benefits if they can find another adult who can pass the drug test to be a payee.

Republicans voting for the bills argued that since many taxpayers must endure drug testing on the job, it was only fair that welfare recipients be tested as well. They also argued drug testing would provide an incentive for drug abusers to seek treatment.

Democrats and their supporters retorted that suspicionless drug testing would likely be found unconstitutional. They also argued that it would be unfair to force people seeking assistance because they're poor to pay the estimated $35 cost of the drug test.

"We believe it is not quite reasonable to expect folks who are applying for temporary assistance to undergo drug testing that they must pay for," said Michael Sheedy of the Florida Catholic Conference, who testified against the bill.

"It may seem a little onerous telling folks they need to get drug tested," conceded Sen. Rene Garcia (R-Hialeah). "But at the end of the day, I want to help people who want to help themselves."

"We're heading into a court challenge with this," warned Sen. Eleanor Sobel (D-Hollywood).

The only state to pass a suspicionless welfare drug testing ban was Michigan, but that law was struck down by a federal appeals court in 2002. The court held that testing without particularized suspicion violates privacy rights and the Fourth Amendment's protection against unwarranted searches.

That hasn't stopped drug testing bills aimed at welfare recipients, unemployment seekers, or other convenient scapegoats from being a perennial favorite of pandering politicians. Although no state has passed a bill since the 2002 court decision, bills have been filed in at least 16 states this year.

The House bill now awaits a floor vote, while the Senate bill goes before the Budget Committee Friday, and then, if approved, on to a floor vote.

Tallahassee, FL
United States

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