Late last month, Georgia Gov. Nathan Deal signed into law a bill that will require every person applying for cash assistance urinate in a cup. Their samples will be sent to labs where they will be tested for drugs. If a test comes back positive for illicit substances, the applicant will be excluded from the safety net program. The bill's supporters say it will save the state money, protect children from drug using parents and do away with welfare abuse. In reality, the new law is a solution in search of a problem.
Deal and his legislative colleagues have placed Georgia at the center of a growing political fight over both the morality and the constitutionality of forcing drug tests on people who appeal for help in brutal economic times. On the legal questions, Georgia is very likely to come out on the losing side; most observers agree the law won't stand up in court. But legalities are not of primary concern. "This is really an ideology bill," Georgia state Sen. John Albers, one of the bill's sponsors, acknowledged to me. "In my case, I believe it's time for an era of responsibility."
Albers isn't alone in his thinking. Nationally, a new strategy has crystalized among Tea Party conservatives who wish to turn the recession into a culture war. In a growing number of states, politicians have sought to undermine the economic safety net by suggesting, in the form of law, that irresponsible behavior rather than a busted, unequal economy has kept poor families struggling. The building meme has made it to the top of Republican ranks as well. "It's a great idea," Mitt Romney said of the Georgia bill at a February campaign stop. "People who are receiving welfare benefits, government benefits, we should make sure they are not using the money for drugs."
As Romney implied, the strategy is not limited to cash assistance, which is an already stigmatized and atrophied program. The drug-user canard has now shown up in debates over nearly every economic safety net program. In December, congressional Republicans pushed a bill that would have required all applicants to the unemployment insurance program submit to a drug test. That bill did not become law, but a watered down version did.
There are currently nearly 30 states with bills in play that would implement drug testing requirements on applicants to some combination of cash assistance, food stamps, Medicaid, unemployment insurance and job training programs. It seems everyone wants a piece of the action.
"I so want drug testing. I so want it," South Carolina Gov. Nikki Haley said last September about unemployment insurance. She then spun a tale about workplace drug abuse that a journalist later exposed as a fabrication. In April, the governor of West Virginia issued an executive order requiring federally funded job-training program applicants to pee in a cup. The Tennessee House recently ended the year's legislative session by sending the governor a bill that would require cash assistance applicants to fill out psychological reviews that are supposed to measure their likelihood of using drugs. Those who fail have to take a test.
It's notable that half of the states that have considered drug testing cash assistance applicants in the past year weighed legislation that would almost surely fail a legal challenge. It's also notable that data shows drug testing to be wasteful. In Florida, nearly 98 percent of applicants passed the tests that Gov. Rick Scott signed into law in June 2011. But constitutionality and efficacy aren't relevant. The point is to stigmatize poor people and, thus, provide political cover for safety net cutting in a time when millions of Americans need it more than ever.
Like many conservative legislative movements, drug testing poor people isn't an idea that's spreading through happenstance. According to interviews with Republican state legislators in several states, these bills are moving through familiar and well-trod pathways connecting conservative think tanks and state legislators scattered around the country. The legislation has made its way from state to state in the briefcases of anti-government ideologues who've spent their whole careers decimating the safety net--often using racially loaded attacks on the poor.
The bills are chatted about in conference rooms at ALEC conferences and on calls between wannabes who think they've spotted they're golden ticket to political fame. As one Kentucky legislator told Colorlines.com, after he introduced a welfare drug testing bill, "I started getting standing ovations. I stop in Wal-Mart and they line up to thank me."
Back to the Future
Testing poor and working people for drugs is not a new idea. It's a trend that picked up significant steam during the war on drugs when in 1986, President Ronald Reagan issued an executive order requiring all federal job applicants to pee in a cup. The order was quickly followed by the Drug-Free Workplace Act of 1988, which required employers with federal grants to keep their businesses drug-free. The act led to widespread drug testing in the private industry and, in a decade, the rate of drug testing applicants among large employers increased almost four fold, from 21 percent in 1987 to 81 percent in 1996.
As rates of incarceration for drug crimes skyrocketed, the idea that drug testing is necessary for a safe society took hold in the political culture. By the time Congress passed its 1996 welfare reform, legislators felt comfortable restricting people with drug convictions from accessing benefits. Congress allowed states to ban anyone with a drug felony from both the welfare program and food stamp benefits. All but 13 states now impose some restriction on drug felons' receipt of welfare.
But it didn't stop there. Welfare reform also included provisions that permitted states to test all welfare applicants for drug use. Why wait for people to get caught when we could just cut druggies off from go? In 1999, Michigan became the first state to impose mandatory drug testing on all applicants. A year later, a federal district court judge blocked the requirement on the grounds that it violated the Fourth Amendment protection against unreasonable search and seizure. The judge wrote that by the state's logic--Michigan argued that the law protected children--mandatory drug tests would have to be imposed on all applicants for any state program that benefited children.
Over a decade later, that's precisely the vision of Tea Party conservatives in particular. At least five states have bills currently in play that would require unemployment insurance applicants to pass a drug test. And in the past two legislative sessions, a dozen states have introduced bills. As of mid-April, there were two dozen states with bills pending to require applicants to cash assistance to submit to a drug test, according to the National Conference of State Legislatures. Some of these also include provisions requiring food stamps and Medicaid applicants be drug tested. Eleven of those bills look substantively identical to the Florida and Georgia bills in that they test everyone applying for cash assistance without any suspicion of actual drug use.
Jason Spencer is a Republican state representative from southeastern Georgia who introduced one of the state's drug testing bills, though his is not the one that became law. He told Colorlines.com that he's motivated by what he considers widespread abuse of public programs for poor and unemployed people. "I see people all stringed out and I have to order a drug test. When I see it, I say, 'Whose paying for the bill?' " Spencer said. "And I see they're on Medicaid. It's not just [cash assistance], it's all the other programs, too."
Thus far, no state has passed one of the dozens of pending bills to require drug testing for unemployment insurance, Medicaid or food stamps. If they do so, it will be in open defiance of federal law. "The idea of testing every applicant: the law is pretty clear that you can't use drug testing as a condition of eligibility," said Maurice Emsellem, of the National Employment Law Project, an advocacy group that supports a strong safety net. But Republicans are actively trying to change that.
"The reason that there's a push in this context now is that [the federal cash assistance program] has it written into the code. Medicaid and food stamps and unemployment, there's no language in there," Rep. Spencer explained to me. "My congressman is trying to amend the federal laws to make it possible in unemployment and Medicaid."
Spencer's congressman is Jack Kingston, who introduced the December bill that would have allowed states to impose drug tests on unemployment insurance applicants. Last year, Utah Sen. Orin Hatch introduced a similar bill to Kingston's. Neither bill passed, but a less draconian version of it was folded into the most recent unemployment insurance renewal. Federal law now allows states to conduct tests on applicants who lost a previous job because of drug use or for whom work is only suitable in a field that requires drug tasting anyway. The legislation left it to the Department of Labor to clarify to the states in what circumstances they can require applicants be tested. They've yet to issue the guidance.
Some state legislators, however, aren't interested in waiting for Congress. Georgia state Rep. Michael Harden introduced the welfare testing bill that became law last month. In 2010, he introduced legislation that would have required unemployment insurance and food stamp applicants to undergo drug testing. That bill would not have passed legal muster even with the new congressional guidelines.
The same is true of a bill introduced in January by an Arizona legislator. The bill would have required all jobless applicants to be tested. The Department of Labor told the state that the proposed law would violate federal rules and would dramatically increase payroll taxes for businesses. The bill's supporters moved forward anyway, even though business leaders actively oppose it. The bill ultimately did not make it out of the House before the Arizona legislature adjourned.
Meanwhile, other states are crafting laws that may well align with the new federal guidelines.
But the precise form that drug testing takes in these states is immaterial because testing unemployed people is not the ultimate goal. As lawmakers learned well during welfare reform, the best way to demolish a poverty program is to first decimate the public image of those who receive it. From the early 1980s forward, the welfare queen narrative prevailed and, by the mid 1990s, tearing down the system that propped these women up became the only logical end. After Congress devolved the welfare program, states shrunk their cash assistance roles to fractions of their previous size. Now, in the recession, one in four low-income single mothers--or 4 million women in all--are without a job or cash assistance.
As the numbers enrolled in unemployment insurance and food stamp programs continue to grow and Medicaid prepares an expansion, the people who turn to those programs for support are facing familiar smears. "I was standing in line and someone has an EBT card and they're swiping to buy Twinkies and chips," Georgia state Rep. Spencer told me about why he's pushing drug testing. "I've seen it and it's disgusting to tax payers."
How a Lie Becomes a Law
It required a concerted effort to get to the point where drug-testing bills have been introduced in two-thirds of the states in the past two years. The bills have moved quietly through networks of state policymakers affiliated with the American Legislative Exchange Council, or ALEC, and through right wing think tanks. The stories behind both Georgia and Florida's recent bills are instructive.
The story of the ALEC is now well known. The organization convenes lawmakers, advocates and corporations to craft model state legislation that then spreads like wildfire around the country. It's from ALEC that the country has seen emerge bills like Arizona's SB 1070, "Stand Your Ground" vigilante laws and new photo voter ID rules that researchers warn may disenfranchise millions of people this November.
In early December 2011, a baby-faced man named Terran Bragdon travelled from Florida to Arizona to speak at ALEC's Health and Human Services Taskforce. Bragdon had only recently moved to Florida, but had already made a name for himself among national movement conservatives. He'd just left a job in Maine as the director of the Maine Heritage Policy Center, a right wing think tank, to start a new organization, the Foundation for Government Accountability. And his first move in Florida was to release a report on drug testing.
Bragdon penned a study that offered some of the only data, in any state, purporting to show the fiscal benefits of a drug testing program. It gave Tea Party Republicans just what they needed: the appearance of social science to back up their poverty bashing. On its website, Bragdon's organization highlights a congratulatory quote from the director of the ALEC task force.
"Tarren showed why members should look to Florida for free market Medicaid welfare reforms that strengthen these safety net programs for those who truly need them, and save money for the taxpayers who fund them," the note reads.
Bragdon told Colorlines.com his presentation on Florida at the ALEC meeting in Arizona stirred significant interest among members. He insists that ALEC has produced no model legislation on drug testing and benefits; indeed, no model legislation or secret memo has turned up. But many of the legislators who've introduced the drug testing bills around the country are ALEC members and some may well have heard Bragdon speak.
ALEC has previously released model bills that encourage drug testing in private industry, for all employers with state contracts, for public housing applicants and for all people on parole.
Georgia state Sen. Albers insists the bill was "not a concerted effort from ALEC." Rather, he described a seamless network of conservative lawmakers buzzing in and around ALEC. "Some bills do come from ALEC," he said, "but some just come from one [legislator] to another. We took the language from Florida and Kentucky. We don't want to try to reinvent the wheel, so we got language from there. This is not coming from think tank per se, but it's the same kind of thing."
Spencer tells a similar story. "In drafting my bill, I'd been working with the legislator who was drafting the bill in Florida," he said. "And I worked with folks who did the research on the bill in Florida when it was in law, a guy named Tarren Bragdon."
A couple of months after his trip to ALEC's Arizona meeting, Bragdon went to Georgia to speak to a House committee at the invitation of Rep. Spencer. He launched into a presentation on his research.
According to people present at the hearing in Georgia, Bragdon spent no time talking about the fact that the Florida bill had four months earlier been blocked by a federal judge, in a suit brought by the ACLU. Nor did Bragdon mention that the judge who blocked the law mocked his research, stating that "the data... is not competent expert opinion, nor is it offered as such, nor could it be reasonably construed as such."
In an interview with Colorlines.com, Bragdon called the judge "pro-addict."
Turns out, the judge is right. Bragdon's data is wrong--and seems to be deliberately so. Bragdon has claimed that the drug testing program saved the state $1.8 million from the nearly 1,600 people whom he claims had "drug-related denials." But the state of Florida itself has contradicted these claims. According to the New York Times, data from the state shows that after reimbursing the 97.4 percent of applicants who tested clean, the state paid out $45,780 more than it would have had the program never been implemented. "We saw no dampening effect on the caseload," said a state document on the testing program, according to the Times.
In other words, the state spent a bunch of money to prove that people it had no reason to suspect of drug use were in fact drug free.
Bragdon's numbers rely on repeated folly. For instance, he includes in his "drug-related denials category" people who completed all parts of the application except for the drug test. Bragdon's implicit assertion is these applicants were drug users. But the judge who blocked the law noted applicants might not have been able to afford the cost of the tests. According to a list of testing collection sites, the tests cost between $24 and $52--for people who are applying for cash assistance.
"People may not have applied because they did not have the money to take it in the first place. The applicants had to pay and then be reimbursed until being approved," said Valory Greenfield, a staff attorney at Florida Legal Services.
Greenfield added that many low-income people don't have credit cards. Yet, applicants were required to pay online first for a test, print out a receipt and then take that receipt with them to a test collection site. Many applicants may have been cut out from the start. A review of the testing sites listed by the state shows that only a small fraction of them accepted cash payment.
But all of these details are beside the point, because truth isn't the end game for Bragdon or the legislators he's helping. "The literature is mixed on this," he acknowledged when asked about the initial faulty assumption: that there's a drug problem among benefit recipients in the first place. Bragdon has actually spent all of his adult life attacking safety net programs with half-truths.
In 1996, 12 days after he turned 21 years old, Bragdon was elected to the Maine legislature as the body's youngest member ever. He spent his first few years focused intensely on implementing welfare reform, before leaving office and heading up the Maine Heritage Policy Center, an anti-government think tank with ties to the Cato Institute. In 2010, amid a hot gubernatorial race in Maine, Bragdon authored a report on "welfare dependency," claiming that under the outgoing Democratic administration, the number of welfare dependent Mainers grew nearly 60 percent. Leading Republican candidates, including Paul LePage, the firebrand conservative who would win the nomination and the general election, picked up the numbers. Problem is, the numbers were an act of pure spin.
"There was a style that was manifest in everything Heritage Policy did and certainly it was true of the welfare report: to take every opportunity to make things look different than they are in a way to make their case," said Kit St. John, a longtime Maine policy wonk. "Most of the people he was talking about in that report were on Medicaid, many were elders getting care. Surely, neither he nor the public nor the seniors think of them as trapped in welfare dependency. The way it was characterized appeared to us a knowing distortion."
So when Bragdon arrived in Florida, a move he told the Naples News he made to "have a policy impact on a bigger stage," he was well practiced. His first major act was to produce data to support Gov. Rick Scott's drug testing bill, and he told Colorlines.com that he's since been in touch with more states than he can count about his research. "We've been in touch with legislators in Arizona, Rhode Island, Alabama to name a few," he said. He's previously said he has worked with legislators in Illinois as well.
All of Bragdon's crusading has paid off. The press release announcing Gov. Deal's signing of the Georgia bill cited Bragdon's misleading Florida research. "Enacting a law to safeguard the public purse, Deal signed legislation that requires applicants to pass a drug test in order to qualify for Temporary Assistance for Needy Families benefits," the release read. "Florida passed similar legislation back in 2010 decreasing their welfare applicant pool by 48 percent and saving their state $1.8 million." None of that is true, but none of it matters much now. The law takes effect on July 1.
The End Game
As the presidential elections heat up, anxieties are reasonably high about what a President Mitt Romney would attempt if the Republicans retain control of either house of Congress. During a January debate in New Hampshire, Romney quite clearly explained his plans for the rest of the safety net.
"I'd cut programs, a whole series of programs ... return to states a whole series of programs, food stamps, housing vouchers, Medicaid and then set how much goes to them," Romney said. In other words, welfare reform 2.0.
As things stand, safety net programs like food stamps, unemployment insurance and unemployment benefits are popular and widely used, which means that tearing them down as Romney is ready to do will take some work. But that work is well underway.
"It's clear it's a way to weaken the social safety net in general in whatever way they can," says Yolande Cadore, of the Drug Policy Alliance, an advocacy group that opposes the drug testing bills. "By casting unemployed and poor people this way, it helps tear down these programs."
So conservative state lawmakers are moving forward with their attempts to cement the link between drug use and poverty. And though many of the most expansive bills are likely to fail in court--the Atlanta-based Southern Center for Human Rights has already said they'll file suit against Georgia--the point may ultimately not be about winning the right to drug test poor and unemployed people. Rather, the goal is to convince Americans that the poor and unemployed don't really need help, that their circumstances are of their own making.