Walker promise of drug tests for jobless could be hard to deliver

Governor says he isn't daunted by federal rules

Sept. 25, 2014

By Jason Stein and Bill Glauber of the Journal Sentinel

Sept. 25, 2014 0

In the final month and a half of the campaign, Gov. Scott Walker is making a blunt promise to voters — that he'll ensure jobless workers aren't on drugs, or their recliners.

"My belief is we shouldn't be paying for them to sit on the couch, watching TV or playing Xbox," Walker told cheering Republican campaign volunteers last week in West Bend. "We need to get them the skills to get back in the game and get back to work."

But tough talk aside, the governor isn't giving voters any details on how he would test those seeking public benefits for drugs beyond saying he's willing to change state law and challenge federal rules to do it.

Opponents of the idea say that if aggressively implemented, the proposal could cost Wisconsin employers a credit on their federal taxes as well as cause a loss in federal money for the FoodShare program, the successor in Wisconsin to the food stamps program. They question why only drug and not alcohol abuse is being targeted.

Earlier this month, Walker said he would seek to require drug testing at an undisclosed cost for able-bodied adults in the state receiving unemployment insurance payments or benefits under FoodShare. No state currently drug tests food stamp recipients.

The idea expands on another Walker requirement to make able-bodied FoodShare recipients receive job training.

FoodShare benefits are paid by federal taxes, but state taxpayers pay some administrative costs. Jobless benefits are funded by Wisconsin employers through payroll taxes.

So far the Republican governor and his campaign aren't going into specifics on the drug testing, such as whether the state would test all able adults or only those who are flagged as suspicious by a questionnaire or other tool. Walker also hasn't said whether he would turn drug users in to police or child services investigators, though most other states have avoided doing that.

That's because Walker's idea is more a campaign ploy than a serious proposal, said the governor's Democratic opponent, former Trek Bicycle Corp. executive Mary Burke.

"I have very serious concerns about his proposal — chief among them that it will likely cost the state more than we would save. Rooting out fraud in public assistance programs is critical, but spending more than we save to do so doesn't make sense," Burke said in a statement.

For his part, Walker showed no signs of letting up on his idea.

"Now the folks in Madison don't think that sounds so good," Walker told the crowd in West Bend. "They say you're making it harder to get government assistance. I said we're not making it harder to get government assistance. We're making it easier to get a job."

Walker told the crowd that he wanted the jobless to be prepared for work and said there are thousands of job openings.

"Jobs are not the problem," he said. "Connecting people to those jobs with the skills they need and more importantly getting people off the couch and off dependence who are able and into those jobs" is what needs to happen.

A March report by the center-left Brookings Institution found that compared with people with jobs, the nation's unemployed are more likely to be younger and unmarried and have lower levels of education. However, compared with the short-term unemployed, the long-term unemployed in the nation are somewhat more likely to be more than 50 years old and more likely to be or have been married at some time.

The majority of both the short-term and long-term unemployed are white, though the longer-term unemployed are somewhat more likely to be African-American and less likely to be white or Latino.

Other states' attempts

In other states, some similar proposals for other welfare programs have met with legal challenges and been blocked so far from implementation. Federal programs have different rules about whether states can test applicants for drugs:

■Georgia approved drug testing of FoodShare recipients who are flagged as suspicious. But the state didn't implement the program after the U.S. Department of Agriculture warned Georgia that federal rules prohibit such testing. No state has implemented testing in food assistance programs.

■Michigan and Florida put into place testing of all welfare applicants. The Florida policy, however, was struck down by a federal judge who said it represented an unreasonable search of citizens by the government. That case is on appeal.

■Utah, Mississippi and Tennessee have all put into place testing of welfare applicants who are found to be suspicious. The states use a questionnaire employed by substance abuse counselors to identify potential drug users for testing.

■Several states such as Arizona, Indiana, Georgia and Michigan have programs in which employers report potential hires who do not get a job because they either fail or refuse a drug test.

Republicans in Wisconsin passed a similar requirement in 2011 as part of the state budget only to repeal it the following year because of concerns about its effects.

Walker isn't daunted

Walker said he isn't daunted by the knowledge that federal rules explicitly prohibit at least one of his promises — to test FoodShare recipients for drugs. He said he hoped Republicans could retake the U.S. Senate this year and help push the proposal at the federal level.

"We're going to push back on this and try to get this without any of those punitive decisions, and I think potentially a lot rides on this November's elections," Walker said.

In the case of FoodShare, challenging the federal law won't get the state anything but headaches, said Jason Williamson, a staff attorney in New York for the American Civil Liberties Union. The ACLU opposes testing, which Williamson said could lead to a loss of federal money for FoodShare.

"That may well be his approach," Williamson said of Walker. "But he'll lose that argument. There's no doubt."

On the issue of testing applicants for jobless and welfare benefits, Williamson and other opponents of the practice said it was less clear-cut whether federal law prohibited it. For now at least, the Florida case raises a red legal flag about the legality of testing all welfare applicants. But other states are targeting their testing to avoid some of those concerns.

In general, jobless benefits must be based on new applicants' work history and the reason they lost their job, said Rebecca Dixon, a senior staff attorney with the National Employment Law Project, which advocates for the unemployed. So drug testing normally isn't allowed under federal rules, she said.

There can be limited exceptions, Dixon said, such as cases in which an individual lost his or her job because of substance abuse or in which individuals are only qualified to do jobs with routine drug testing, such as for example a pilot or train engineer.

Potential costs

But going beyond those exceptions could lead to consequences from the federal government such as Wisconsin employers paying more in federal taxes, she said.

"Essentially, you'd lose a federal tax credit for employers," Dixon said.

Testing large numbers of applicants for drugs would cost money, said Dixon, who estimated the per-person cost at $25 to $75.

For instance, at $25 apiece, it would cost $132,500 to test all 5,300 initial applicants for just jobless benefits for the most recent week in Wisconsin.

Dixon said that the experience of other states shows that Wisconsin would find it hard to recover those costs through savings in public benefits.

In the case of Florida, the ACLU has argued that the state spent more for testing than it saved through the 3.6% of welfare applicants who either failed the drug test or canceled their appointment to take it.

Brett Healy, president of the free-market MacIver Institute in Madison, said Walker's proposal could help people in the state confront their addictions.

"If we are going to have a serious conversation about poverty and how, we as a society, are going to end poverty, addiction must be a part of that conversation....If it is true that this common-sense reform is not currently allowed, hopefully the Wisconsin congressional delegation will help Governor Walker get the waiver he needs to implement this plan," Healy said.

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