Are PA Legislators Trying to Get on “The Daily Show”?

Apparently, Pennsylvania legislators don’t follow the national news. If they did, they’d know that their recently launched initiative to begin forcing some welfare recipients to pass a drug test in order to receive benefits is not only ineffective and unnecessary, but very possibly illegal too. Then again, no one ever accused a politician of using common sense.

Our story begins a year ago this month, when Democratic Senator John N. Wozniak—whose district covers portions of five counties in western Pennsylvania—drafted Senate Bill 719, requiring adult recipients and applicants for assistance under the federal Temporary Assistance for Needy Families program to submit to random drug tests or lose their cash assistance.

By April the bill had passed overwhelmingly in the House, and despite the threat of a challenge by the ACLU, looked to be well on its way to clearing the Senate as well. But as fortune would have it, the bill never even had to face a vote there. In June Governor Corbett signed Act 22, an emergency budgetary order that gave the Department of Public Welfare sweeping powers to make necessary changes to things like benefits and eligibility status without the need for legislative approval.

Of course, the mandate was intended to help the DPW save money, not waste it. But more on that later.

Last month the state began implementing the law—modified to apply only to welfare recipients who have been convicted of a felony in the past five years or are currently on parole or probation—as part of a pilot program in Schuylkill County. It’s expected to be rolled out statewide this summer.

The thing is, they already tried something like this in Florida, and let’s just say it didn’t quite work out as expected. Last June Governor Rick Scott approved a law nearly identical to Wozniak’s original bill, requiring TANF recipients and applicants to give up their urine (and pay a reimbursable $30 upfront for the privilege to do so) or forfeit their benefits.

The governor even thought he had just the right data on hand to back it up, telling CNN’s T.J. Holmes: “Studies show that people that are on welfare are higher users of drugs than people not on welfare.”

But a funny thing happened when the first round of test results came out: Just 32, or 2.5 percent of the 21,000 enrollees who chose to take the test came up positive for drugs—significantly lower than the population as a whole; and the vast majority of them tested positive for marijuana (not exactly most people’s idea of a highly addictive substance.) The Centers for Disease Control estimates that 8.7 percent of Americans have used illicit drugs in the past month, which means even if every single person who opted out of the test did so because they were on drugs—which is unlikely—the rate of drug use among welfare recipients is roughly on par with the national average. Not quite the mandate Governor Scott was looking for.

The ACLU cried foul and in October a federal judge temporarily halted enforcement of the law saying it violated the Fourth Amendment protection against unlawful search and seizure.

So ended Florida’s experiment in bad judgment (at least for now). Not only were supporters of the law left with egg on their face, but it was soon revealed that the whole fiasco has yet to save the state a dime and, in fact, has cost taxpayers $200,000 to administer. The icing on the cake came late last week when Florida Rep. Scott Plakon—a strong supporter of the law—and Governor Scott got schooled in front of millions of cable viewers by The Daily Show’s Aasif Mandvi.

Who wouldn’t want to follow in those footsteps?

And so begins Pennsylvania’s experiment in bad judgment. According to the National Conference of State Legislatures, we are now the only state in the nation that mandates random drug testing of TANF recipients without any suspicion of drug use (two others, Arizona and Missouri, require testing in cases where abuse is suspected). The distinction sets us up for an almost certain legal showdown over the law’s constitutionality.

The sponsors of Pennsylvania’s bill are hoping that by narrowing the focus of the law to convicted felons it will pass muster with the courts. After all, the only target easier than a poor person is a poor person who has been convicted of a crime. But civil liberties groups aren’t buying it, and you can be sure they’re lining up as we speak to challenge the bill. There’s a good chance they’ll win, too.

See, the Supreme Court has ruled that it is within the law to attach certain restrictions to government benefits, as long as they don’t violate basic constitutional rights (for instance, you can’t predicate aid on a recipient giving up the right to free speech). The Fourth Amendment protects citizens against unreasonable search or seizure without probable cause. In 1989 the Court ruled that requiring a urine sample constitutes a search, which means it must meet the standard of “reasonableness” to be constitutionally sound.

Businesses are exempt from this mandate because employment is largely voluntary; but can you really call collecting welfare a voluntary act when it’s the only thing standing between your family and  homelessness?  The way I see it, in order for this law to pass muster—legally and morally—it needs to give something back to the community beyond a sense of satisfaction that we’ve tossed another drug-addled interloper off the dole. There needs to be some public benefit.

Which brings us to money. If Florida is any lesson, we shouldn’t expect to reap much fruit from the new testing mandate. Official estimates on the cost of Pennsylvania’s program range from $192,000 to $474,000 a year, and even its proponents aren’t convinced it will save money. State Rep. Garth Everett, a Republican from Lycoming County, told the Morning Call it was never designed to do so.

“We saw it more as something that was going to restore the integrity of the program,” he said.

That violates the spirit if not the letter of Act 22, which was passed as a budgetary program, not an exercise in integrity building. There are no doubt much more important programs that can use an extra half a million dollars.

Anyway, according to U.S. District Court Judge Mary Scriven—who ruled in the Florida case—even if it did save the state money, that might not be enough to make it legal.

“If invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the state could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment,” she said.

In order for Pennsylvania to fare any better it will have to prove that testing ex-cons and parolees somehow benefits public safety. But since the courts already have ample supervisory power over many of them—including mandatory drug testing for parolees and most people on probation—I don’t see how that is likely.

The best the Corbett administration can hope for is that the hype dies down before anyone notices the problems with the law. But with some 30 states and the U.S. Congress looking to pass similar measures, chances are this topic is going to remain in the public dialogue for some time.

In the meantime, keep your eyes peeled  for Jon Stewart. I expect he’ll be turning up any day.