Kansas Bill To Drug Test Welfare Recipients Passes Senate With Amendment To Test Lawmakers, Too

A Kansas bill to drug test recipients of welfare and unemployment benefits is advancing, but not without an attempt to equalize the burden the invasive tests impose. Although Democrats were unable to stop a drug-testing measure that supporters say is aimed at preventing state dollars from being used to buy illegal drugs, they were able to insert an amendment in the version that passed the state Senate Thursday intended to better achieve that goal: drug-test lawmakers, also. The Kansas City Star reports:

The proposal calls for drug tests whenever state officials have reasonable suspicion that someone receiving or applying for welfare or unemployment benefits is using drugs.

Suspicion could be raised during addiction screening by the Department for Children and Families or by missed meetings or criminal records. A proposal pushed by Democrats to also test any lawmaker suspected of drug use was added to the bill.

Suspicion of drug use by lawmakers could be identified by the Department of Administration based on criminal records or other complaints.

Benefit recipients who fail the test would lose state assistance until they complete drug treatment and job skills programs. Lawmakers who fail would also have to enter treatment and job skills training.

Of course, there are several gaping differences between the requirements for welfare recipients and lawmakers, including the circumstances that will trigger a drug test, and the fact that lawmakers who fail a test don’t lose their state funding — their salary — while they complete drug treatment. But the intent, as Democratic Sen. Oletha Faust-Goudeau said, is to assert that “What’s good for the goose is good for the gander.” Holding lawmakers to the same standard is not something a proponent of Florida’s drug-testing law was willing to do.

The federal appeals court decision blocking Florida’s mandatory drug-testing law made clear that blanket testing of public assistance applicants is likely unconstitutional. In fact, blanket testing of legislative candidates has also been deemed unconstitutional, as is most suspicionless drug testing, absent significant public safety concerns. But the Kansas bill, like legislation passed in several other states over the last two years, is somewhat more selective. It requires “reasonable suspicion” – the required constitutional standard for performing a police “stop” under the Fourth Amendment – before a drug test can be performed.

A drug test, however, is considered a “search” under the Fourth Amendment — not a stop — and typically is only allowed “pursuant to a judicial warrant issued upon probable cause.” While the Supreme Court has made some exceptions to this rule for public safety and the protection of children while in public school, two federal courts reviewing these laws have found that neither of these exceptions apply. What’s more, factors constituting “reasonable suspicion” under the Kansas bill, such as missed appointments and previous employment in an industry that requires drug screening, seem to have no connection whatsoever to drug use or abuse. The bill will now be considered by the House, and Gov. Sam Brownback hasn’t said whether he would sign the measure.