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Arthur Delaney
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Drug Testing Bill Targets Florida State Workers, Excludes Lawmakers

Posted: 02/27/2012 1:24 pm Updated: 02/27/2012 10:45 pm

A Florida state lawmaker is pushing a bill requiring state agencies to test their workers for drugs. But the bill wouldn't mandate testing for all public sector employees; members of the Florida legislature would get a pass.

Rep. Jimmie Smith (R-Lecanto), the bill's sponsor, said he supports drug testing for lawmakers, but requiring them to pee in cups like everyone else would violate their constitutional rights. In an email to The Huffington Post, Smith cited the U.S. Supreme Court's 1997 decision in Chandler v. Miller, which struck down tests for political candidates in Georgia.

While he "strongly" supports drug testing for legislators, Smith said, "being elected to office is completely different from being hired by a company or agency."

Some of Smith's Democratic colleagues think his bill would set a double standard. "I firmly believe we have to lead by example," Rep. Joe Abruzzo (D-Wellington) said last week, according to the Miami Herald. "The day that I have to go take a [drug] test as a state representative is the day that I'll support this legislation."

In 2011, Republicans caught a fever, and the only prescription has been more drug testing. At least 36 state legislatures considered bills to drug test welfare applicants, and at least a dozen mulled drug tests for the recipients of unemployment benefits -- although lawmakers rarely cite evidence that either population has a drug problem. In several states, Democrats have countered with legislation to drug test the people writing the bills.

Florida has already gone further than any other state. Last year, Gov. Rick Scott (R) issued an executive order directing some state agencies to test their workers for drugs, and he was the only governor to sign into law a bill requiring blanket drug testing of every welfare applicant. Lawsuits have beaten back both policies for now.

The Florida chapter of the American Civil Liberties Union challenged the executive order and the law in court. It won a temporary injunction that halted the welfare testing. Scott suspended the public worker testing in the wake of the suits, which are ongoing.

While the governor's order already represented "the most sweeping assessment of suspicionless testing by any government in the history of the country," said Florida ACLU spokesman Derek Newton, Rep. Smith's bill would set up an even broader drug testing regime. Newton said his organization doesn't comment on potential litigation, but suggested Smith's bill, which will soon be considered by the full Florida House of Representatives, would probably trigger another challenge if it became law.

"We have gone to court twice in the last year to challenge suspicionless drug testing," Newton said, "and if the state continues to enact policies to require people to be subject to government search and seizure without suspicion, I would not be surprised at all if that's something we continue to oppose."

HuffPost asked Smith why, if he's willing to risk a court challenge over testing state workers, is he not willing to risk a challenge over drug testing in the statehouse. He said that adding lawmakers would "incredibly broaden" the scope of the bill and that the Supreme Court has made it clear what's constitutional and what's not.

"To this date, the Supreme Court has only heard two cases relating to drug testing employees, and both of these were held constitutional," Smith said. "The Supreme Court is the ultimate law of the land, and, to date, drug testing of state employees has not been found unconstitutional."

Nevertheless, Smith stressed that he's not opposed to taking drug tests as a member of the Florida Legislature.

"In fact, just last week at the demand of some constituents, I gladly paid $40 out of my own pocket to take a drug test and passed this test," he said. "I will continue to make these results available in my office to any constituent who is interested in viewing them. My constituents are my boss, and if asked, I will gladly take a drug test."

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