From written tests designed to flag drug users to singling out people with recent drug convictions, state lawmakers across the country are pursuing novel strategies to deny welfare benefits to drug users without running afoul of a recent federal court ruling.
In December, a federal judge in Florida struck down the state's drug-test requirement. But almost half the states are considering drug-testing bills designed to withstand legal scrutiny. In Alabama, Indiana and Mississippi, such measures already have advanced by overwhelming majorities.
The movement is the latest iteration of a welfare drug-testing campaign that began gaining momentum about five years ago. Some lawmakers support the tests to help drug users on public assistance to get help. Others back them to make sure public dollars aren't subsidizing drug habits, or say it's simply about saving money.
"Some states have gotten smarter," said Jason Williamson, a staff attorney with the American Civil Liberties Union, which has challenged drug-testing laws. "There are certainly ways that a state could formulate one of these programs that would make it very difficult to challenge."
Drug testing for welfare benefits has been a subject of debate since Congress overhauled welfare in 1996. As part of those changes, states were allowed to drug test applicants for the Temporary Assistance for Needy Families (TANF) program, commonly known as welfare. Other safety-net programs like jobless benefits and food stamps have different drug-testing rules, based on federal law and policies in individual states where the programs are administered.
Until five years ago, few if any states drug tested for TANF. Since then, however, at least nine have passed some kind of drug testing requirements for the program, according to the National Conference of State Legislatures. Kansas and North Carolina did so last year.
Even as interest in drug testing has ebbed and flowed, states have recognized there were some limits to how many welfare applicants they could screen, and for what reasons. A 2003 ruling in Michigan first established those limits, striking down that state's law on blanket-testing applicants, which was the first of its kind.
Almost a decade later, state lawmakers returned to the issue and began proposing tests again. The Florida law, supported by Republican Gov. Rick Scott and approved overwhelmingly by the state legislature in 2011, was a direct challenge to the Michigan ruling and was the first such policy enacted since that decision.
AIMING FOR IMMUNITY
But proposals elsewhere have been more cautious, as lawmakers fear costly lawsuits they seemed likely to lose. At least one state, Georgia, scuttled a similar policy because of the Florida ruling, although new, narrower drug-testing bills emerged there this year.
Other states also have tried to craft laws that will be immune to lawsuits. A measure in Alabama, which has already passed the state Senate, would require anyone convicted of a drug offense in the last five years to undergo — and pay for — a drug test as part of a welfare application. The cost of the test would be reimbursed if the applicant passed.
Republican Rep. Kerry Rich, who sponsored the Alabama bill, said it was written narrowly to avoid a legal challenge. "If I had my way…I would do a random drug test," he said. "But it's been pretty well-established you can't do that."
"I'm not for the taxpayers funding that drug habit," Rich said. "You have a situation, which we've gotten away from, where people are responsible for their own lives."
Other measures would require applicants to take personality tests designed to detect likely drug users. The Mississippi House recently passed such a measure, as did the Indiana House.
Under Indiana's original bill, anyone whose test raised "red flags" would be placed in a pool with other suspicious applicants, and half of those applicants would then be subject to drug testing. But that proposal has already been weakened in the Senate, where lawmakers changed the bill so it would apply only to those with recent drug convictions.
Indiana Rep. Jud McMillin, a Republican who authored the original version, said he may not support the new one. Republicans in Indiana control both chambers of the legislature.
"I am absolutely not interested in passing a bill that doesn't do anything just so we can tell people that we passed a bill to drug test people for their welfare benefits," McMillin said. "I can't find anybody that would make the argument to me that using illegal drugs is a good idea."
GOOD PUBLIC POLICY?
Beyond figuring out how to craft drug-testing requirements, there is a broader question of whether the denial of welfare benefits to drug users is a good idea.
"There are constitutional problems with this, but there are also some serious public policy problems," said the ACLU's Williamson. "All of these programs are making unfair and unsupported assumptions about poor people."
Also, many studies have shown that expected savings for state budgets as a result of testing rarely materialize, even though exact figures on numbers of applicants tested, positive tests and any savings are hard to come by in those states with testing requirements.
Where savings are reported, they are relatively modest. In its first year with a questionnaire-plus-testing policy, Utah reportedly spent $30,000 on the screening to net 12 positive tests. In total, 250 people were denied benefits, in most cases because they didn't complete the process. As a result, the state saved $350,000 in benefits not paid.
In the five weeks before its law was put on hold, fewer than 10% of Michigan applicants tested positive, and only 3% tested positive for "hard" drugs such as cocaine. An ACLU analysis of Florida's drug-testing law found that in the four months before it was halted by a judge, 108 applicants out of 4,086 tested positive.
Meanwhile, Minnesota is already revisiting a drug-testing law Republicans pushed through just two years ago, a change of heart brought on by a turnover of political control and a confusing, uneven rollout of the requirement itself. The Minnesota legislature, now dominated by Democrats, will consider repealing a 2012 law requiring drug tests for applicants with a recent drug conviction.
Some counties in the state have acted quickly to implement the requirement. In a few cases, those on welfare rolls received erroneous notices of drug tests based on crimes outside the window that the law requires. Some lost benefits amid the confusion.
Before 2012, counties around the state had the option to use drug tests to screen applicants, but few did, said Kathleen Davis of Mid-Minnesota Legal Aid, which helps eligible people access benefits. The proposal state lawmakers are considering this year would revert to that policy.
But Minnesota is the exception.
Tarren Bragdon, of the Foundation for Government Accountability, a conservative advocacy group based in Florida, predicted that states will continue to enact new testing schemes for welfare applicants.
"The goal was always the same," Bragdon said. "How do we protect kids and families, and at the same time ensure that people who are receiving public assistance are ready to go into the workforce and become productive members of society?"
Stateline is a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy.