Post-Election, State GOP Leaders Still Push Drug Testing the Poor

The wave of laws that have swept the country since 2010 has clearly not crested, despite court challenges and evidence that drug testing dramatically increases costs.

By Seth Freed Wessler Dec 12, 2012

A new year, a new leaf, right? Not so much when it comes to the policy-making in the states. While Washington wrangles in fiscal cliff negotiations over what programs to cut, state-level politics is moving forward into new legislative sessions more or less as they have for the last two years, with Republican legislatures taking cracks at the safety net.

And one of the GOP’s favorites is back: a review of state legislative action in the past several weeks reveals that Republicans are once again proposing bills to require drug tests for poor and unemployed people seeking government assistance. 

The past two years brought a flood of state bills to require that welfare, unemployment insurance and food stamp applicants undergo drug tests. At least seven states passed legislation in 2011 and 2012. Over two dozen legislatures considered similar bills.

Now, in the month since the elections, Republicans in at least four more states have proposed welfare drug testing laws. With little shift in the partisan make-up of state legislatures after the November elections, more are likely on the way.

Supporters of the laws say they are intended to keep government benefits and taxpayer dollars out of the hands of drug users. Welfare, they say, exists to support families and children, not enable addicts. But there is scare evidence of a significant problem of drug use among welfare applicant, and courts have already declared similar laws unconstitutional. Moreover, states that have actually implemented testing laws have paid hundreds of thousands, sometimes millions of dollars to test applicants and defend against court challenges, while finding few people who actually test positive.

Florida Gov. Rick Scott signed a law last year requiring all applicants to the state’s welfare program to urinate in a cup. It was the first law of its kind since 1999, when Michigan passed a drug testing bill for welfare recipients. The Michigan law lasted just over a month before a judge blocked it on the grounds that it violates the 4th Ammendment protection against unreasonable searches.

For whatever reason, Florida lawmakers believed they’d get a legal pass, but the ACLU of Florida quickly asked a federal judge to block the law on similar constitutional ground. The court agreed and the state of Florida appealed to the 11th Circuit Court of Appeals in Atlanta, which has yet to issue an opinion following arguments on the bill’s constitutionality last month. 

For all of the resources Scott has poured into creating and defending the Florida program, it found just 2 percent of applicants who tested positive for drugs.

But the fiasco in Florida has done nothing to deter tea party backed governors and legislators across the country.

In April, Georgia Gov. Nathan Deal signed a bill almost identical to Florida’s, even as it was clear that the Florida law might not withstand legal challenges. That law was supposed to take effect on July 1 of this year, but Deal, in a burst of sound, albeit late judgment, put implementation on hold until the 11th Circuit rules.

At least five other states passed watered down versions of drug testing bills. According to the National Conference of State Legislatures, Arizona, Missouri, Utah, Tennessee, Oklahoma all passed bills that impose drug tests on welfare applicants. The bills in these five states are crafted to dodge constitutional pitfalls. 

"Other states–other than Georgia–which passed copycat laws, have tried to tweak their plans to make it a little less worse," said Maria Kayanan, the Florida ACLU attorney who argued the case in the 11th circuit, says. "But it’s still all based on the stereotype that poor people abuse drugs." 

Legislators in a number of other states are not waiting for the 11th Circuit either. An Ohio Senate subcommittee held a hearing last week on a bill to set up suspicion-based drug testing for welfare applicants on a trial basis in three counties. A Virginia lawmaker last week promised a similar law. The bill failed there earlier this year because the state estimated that it would cost Virginia $1.5 million to implement, with a projected savings of less than $330,000 from kicking people off the program.

In Kansas, Mcclatchy reports:

Just a day after he joined the new leadership team in the Kansas Senate, Republican Jeff King revealed part of its agenda. Drug testing for welfare recipients.

King, the newly minted Senate vice president, predicted that his chamber–and the entire Legislature–would pass a law requiring drug tests for welfare and unemployment benefits.

Texas came out ahead of the rest. 

Just on the heels of the election, Texas Gov. Rick Perry held a press conference to announce his support for legislation to impose drug tests on welfare and unemployment insurance applicants. The bill was filed the Monday after the elections by Republican state Sen, Jane Nelson. Those who fail a drug test will be kicked off the programs for a year. It also requires Texas officials to report parents who fail tests to Child Protective Services.

"Texas taxpayers will not subsidize or tolerate illegal drug abuse. Every dollar that goes to someone who uses it inappropriately is a dollar that can’t go to a Texan who needs it for housing, child care or medicine," Perry said.

But if fiscal responsibility are the test of a sound bill, drug testing has not fared so well. A federal court forced Florida to pay all benefits denied to applicants during the four months when the bill was in effect. In sum, that came to nearly $595,000 in benefits due and another $113,000 for the cost of drug tests, reported the Sun Sentinal.

On top of these expenses, a recent report from the Palm Beach Post reveals that the state of Florida has spent nearly $1 million in legal fees defending laws passed since Gov. Scott took office three years ago. This includes at least $39,000 on a pair of expert witnesses in defense of the welfare drug testing law, including a psychiatrist who the state paid $350 an hour.

The costs are a quandary for Republicans who oppose expanding social programs because of budget concerns. But interviews with lawmakers who introduce the bills explain why the legal and fiscal track records from Michigan and Florida have done little to stop the spread of the drug testing legislation. As one of the sponsors of Georgia’s bill told this spring, it’s about ideology, not saving money.

"This is really an ideology bill," declared Georgia state Sen. John Albers. "In my case, I believe it’s time for an era of responsibility."