Your Brain on Politics

Why does the legislature want to drug test itself so bad?

Some version of a bill mandating drug testing for public employees has been introduced in every legislative session for the last decade. One early version of this legislation took the broad approach, rolling together several categories of state worker—teachers, childcare workers, adult home service workers, elected officials—into the proposed testing and screening regime. When the omnibus method failed, a number of more narrowly tailored bills arrived to take its place, one for teachers, one for politicians, and so on, all taking their place alongside the perennial odd bill (or few bills) trying to drug-test welfare recipients and those on unemployment.

These bills, which have been backed by both Democrats and Republicans, have never proved very popular, but they have proved numerous. In the 2015-16, 2017-18, 2019-20, and 2021-22 sessions, for example, there have appeared, every time, at least three separate memos seeking co-sponsorship for legislation to impose drug testing on members of the General Assembly and/or candidates for certain statewide public offices. For some reason, drug-testing bills do not tend to get very far, but stall in committee almost as soon as they are introduced. Only one such bill, in fact, concerning public school teachers, has even passed out of the House in the last decade. And because of the particular structure of Pennsylvania’s legislative process—every bill has to go through a committee relevant to its subject matter, and committee chairs have the uniquely concentrated power of halting legislation virtually without cause or explanation—it can be difficult to discern whether these ideas fail because there is truly no political will for them or because, for one inscrutable reason or another, they just slip the attention of those with the power to move them forward.

At any rate, the question of popularity here is secondary to that other question of constitutionality, to which the answer, simply put, is no, you can’t drug test elected officials. In a 1997 case, Chandler v. Miller, the Supreme Court of the United States struck down a Georgia state law requiring candidates for public office to submit a negative urinalysis drug test prior to nomination or election. The Court held, 8-1, that requirement to be unconstitutional because, to make a long story short: (1) drug testing by the government constitutes a search under the Fourth and Fourteenth Amendments; (2) a search must meet certain criteria to override an individual’s right to privacy under these amendments; and (3) a general drug testing requirement for candidates without at least a demonstrated pattern of drug abuse among all candidates—which would not be conclusive in itself, but could “shore up an assertion of special need for a suspicionless general search”—does not meet the criteria of a reasonable search. Ergo, unconstitutional.

That some of our state legislators seem to have foregone basic research before presenting their ideas for enshrinement in law does not bode especially well for their argument that drug use threatens good governance in any exceptional way. Not one of the memos for drug-testing legislation cites to the Georgia state law case or makes a case for how and why it should survive review by a court—or even, for that matter, why we should accept that drug use among some General Assembly members would impede the legislative function any more than that function already impedes itself. If these legislators are, indeed, concerned about securing the legitimacy of state government, then they ought to stop wasting time trying to purge the legislative body and turn their attention to the obscure and blatantly anti-democratic parliamentary rules that stop actually useful, actually popular legislation from coming to pass. If their goal isn’t simply to gatekeep political power—and I’m not entirely convinced that’s not their goal—then they need to articulate, publicly and cogently, a vision for a more efficient, more serious, and more for-the-people legislature. They can begin by dropping these thoughtless bills.