Wisconsin could have one of the nation’s most sweeping drug-testing requirements for those receiving public benefits if the proposal by Gov. Scott Walker to test those who apply for unemployment checks and food stamps becomes law.
But with scant details, it’s unclear whether any expansion beyond the current testing of drug felons would be allowed under federal law governing the state’s FoodShare program. It’s also unclear how Wisconsin could craft any broad-based testing program for public benefits recipients that would be found constitutional.
The newly re-elected governor and Assembly Speaker Robin Vos, R-Rochester, both say a top priority of the upcoming legislative session is to require that recipients receiving food assistance and unemployment compensation be drug free to qualify for benefits.
In Wisconsin, an estimated 836,000 people receive FoodShare benefits, about 40 percent of them children, according to the state Department of Health Services. As of last week, 39,958 people had filed weekly unemployment compensation claims, according to the Wisconsin Department of Workforce Development.
As part of his re-election campaign platform, Walker vowed to require “a drug test for those requesting unemployment and able-bodied, working-age adults requesting food stamps from the state.” But no further details, including the cost and scope of the proposal, were available last week from the Walker administration.
Spokeswoman Laurel Patrick said the governor will work with his Cabinet in the coming weeks “to craft a specific proposal,” which is designed toward “moving people from government dependence to independence.”
In the past three years, numerous states have proposed drug testing recipients of cash welfare and unemployment benefits, according to the National Conference of State Legislatures.
Eleven states require testing of at least some recipients receiving cash welfare, NCSL data show. Four states have drug-testing requirements for at least some people seeking unemployment compensation, the NCSL said. Two states — Kansas and Mississippi — have both requirements, according to Jeanne Mejeur, senior researcher at the National Conference on State Legislatures.
While acknowledging no details on Walker’s proposal are yet available, Department of Workforce Development spokesman John Dipko said the agency “is committed to ensuring those who receive public assistance such as unemployment benefits are ready and willing to work.”
But some state programs in which everyone receiving or applying for public benefits is drug tested have been slapped down as unconstitutional. And more narrowly tailored programs testing only suspected drug users have resulted in very few beneficiaries being dropped from welfare rolls.
If Wisconsin attempts to enact broad-based testing for food-stamp recipients, it could run into legal troubles. Earlier this year, Georgia passed a law requiring testing of food stamp recipients suspected of drug use but agreed in July not to enforce it after the state attorney general and the U.S. Department of Agriculture warned it was illegal and could result in loss of federal funding for Georgia’s program.
Sherrie Tussler, the executive director of Hunger Task Force of Milwaukee, questioned how the Walker administration would implement such a program.
“In the states where they did do drug testing, they invested tens of thousands of dollars and found very few people,” she said. “If they come up with a positive test, is he (Walker) going to help them find treatment?”
Tussler said she sees no upside to such a requirement — for recipients or taxpayers.
“For people who are addicted, do we also want to starve them?” she said. “In a nutshell, starving somebody is not any type of drug treatment program that I’ve heard of, and I’ve been in social services for 35 years.”
Since 1996, federal law has allowed states to deny cash welfare benefits to drug users as a result of sweeping welfare reform enacted during the administration of Democratic President Bill Clinton.
In addition, federal rules bar those convicted of a drug-related felony from receiving food stamps. But states can make exceptions, and 20 states and the District of Columbia have eliminated the ban entirely.
Wisconsin is one of 17 states that allow those with drug-related convictions to receive food stamps if they pass a drug test.
“Exploring options to expand drug testing for individuals in the FoodShare program is one way we can help Wisconsin employers grow our workforce,” Department of Health Services spokeswoman Stephanie Smiley said. “Such an initiative will maximize the investment made by state and federal taxpayers.”
But federal law does not allow states to require broad-based drug testing of all food-stamp recipients, said Alan Shannon, regional spokesman for the U.S. Department of Agriculture Food and Nutrition Service.
He said federal law bars states from tacking on additional requirements for food-stamp eligibility beyond what the federal government already requires.
When it comes to cash welfare, broad-based drug testing also has been declared unconstitutional.
Florida’s law has been on hold for three years since a federal judge found the requirement violates the constitutional guarantee against unreasonable government searches.
The class-action lawsuit was brought by Luis Lebron, a single father and disabled Navy veteran, who refused to take a drug test on the grounds that it violated his civil rights.
U.S. District Judge Mary Scriven agreed with Lebron, finding that mandatory drug testing without a reasonable suspicion of drug use violates the Fourth Amendment.
That decision, involving the state’s Temporary Assistance for Needy Families program, was upheld by the 11th Circuit U.S. Court of Appeals last year. The state of Florida has appealed.
“The evidence in this record does not suggest that the population of TANF recipients engages in illegal drug use or that they misappropriate government funds for drugs at the expense of their own or their children’s basic needs,” the appeals court found.
“The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.”
In July, Tennessee implemented “suspicion-based” drug testing for people applying for its federally funded Families First program. The law requires that applicants answer a three-question survey asking whether they have used marijuana, cocaine, methamphetamines or amphetamines or opiods; been fired for drug use; or had a court appearance on a drug-related charge in the previous three months.
If respondents answer “no” to all questions, they are not subjected to drug testing.
In the first three weeks of the program, 812 people applied for assistance, according to figures from the Tennessee Department of Human Services cited by The Tennessean. Four who refused to participate in the process were denied benefits. Six who answered “yes” were tested, and one failed . In all, five were denied benefits.
The Deseret News, reporting on a similar program in Utah, found that in a 12-month period from 2012 until 2013, 12 people were denied benefits after the state spent $30,000 screening and testing welfare recipients. About one-fourth of the 466 people required to take drug tests refused and stopped the application process, the newspaper reported.
In Missouri, over an eight-month period, 636 drug tests were administered, yielding 20 positive tests at a cost of $500,000, the Kansas City Star reported in December. Two hundred people refused to take the tests and were denied benefits, the Star reported.
In a letter to Walker in September, Democratic U.S. Reps. Mark Pocan of Madison and Gwen Moore of Milwaukee cited the Missouri figures.
They questioned both the legality and the cost of Walker’s proposal, which they said could “hurt Wisconsin taxpayers or unfairly limit their access to federal programs.”
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