WASHINGTON ―Before entering politics, Rep. Richard Hudson (R-N.C.) said he waited tables, worked at a Belk department store and at a Radio Shack. While he didn’t remember ever having to pass a drug test at one of those jobs, he said he’d be willing to pee in a cup to pass the test as a congressman.
“I’d support that,” he said. “I’d take one today.”
Last week, Congress sent President Donald Trump a resolution that Republicans hope will allow states to drug test people applying for unemployment insurance. The resolution was controversial, but the House and Senate approved the resolution with little debate. The Huffington Post asked several lawmakers if they, too, would be willing to be tested.
Reps. Ted Yoho (R-Fla.), Roger Marshall (R-Kan.) and Trent Franks (R-Ariz.) all said they would. Franks said members of Congress should not be stoned on the job, though he added he had no evidence that any were.
Rep. Kevin Brady (R-Texas), chairman of the House Ways and Means Committee ― and the author of the resolution awaiting Trump’s signature of approval ― didn’t support the idea of drug testing lawmakers. Brady said that the current unemployment drug testing policy only applies to people who’d lost their jobs because of drug use or who were seeking new employment in an occupation where testing is common.
“It’s about getting them job ready,” Brady said. “None of those elements apply [to members of Congress].”
In 2012, Congress passed a bill that allowed states to drug test unemployment claimants, which had been a Republican policy goal for years. But as the result of a compromise with Democrats, the legislation said states could only test people seeking work “in an occupation that regularly conducts drug testing” as determined by the U.S. Labor Department. When the department finalized its guidance for states last year, it focused on occupations with a public safety component; Republicans called the rule too narrow, though they haven’t suggested that lawmakers, like themselves, ought to be drug tested too.
Instead of changing the law, Brady’s new resolution simply deletes the regulation on occupations using a special congressional power called the Congressional Review Act, which allowed the Senate to approve the resolution without needing a supermajority.
Sen. Ron Wyden (D-Ore.) said striking the original regulation will backfire, since the underlying federal law still directs states to the U.S. Labor Department for guidance on which occupations can be tested. Three states have passed unemployment drug testing laws that have been on hold until the Labor Department’s regulation gets sorted out.
“The consequence is you’re going to have a lot of legislators, who thought they were beefing up and expanding the effort to do drug testing, finding themselves caught in the tar of gridlock,” Wyden said.
But Brady said he expects the Trump Labor Department to issue a new rule, so Congress won’t have to pass another law ― which would be difficult, since Democrats could easily block a new bill in the Senate.
A potential problem, however, is that the Congressional Review Act says federal agencies can’t reissue a regulation that is “substantially similar” to one that has been disapproved. George Wentworth, an attorney with the National Employment Law Project, said lawmakers could undermine their own power if they allow an executive branch agency to issue a new rule. It’s a situation that’s never happened before.
“If Congress is just going to pretend that [a new rule] is different, that’s a dangerous precedent,” Wentworth said. “That’s a risky strategy because it would apply in future situations.”
As for drug testing, this month House Democrats mockingly proposed drug tests for wealthy investors who would get a break under the Republicans’ proposal to repeal Obamacare.
Asked if members of Congress should be drug tested, Wyden suggested that he didn’t think so. “I will just say as a general proposition, I think drug testing is a very flawed policy,” he said.
In 2013, Rep. Jim McGovern (D-Mass.) suggested members of Congress ought to pass drug tests in response to a Republican proposal that would let states test food stamp recipients. Later that year, a Florida Republican wound up getting busted on a cocaine charge. Yet McGovern didn’t sound thrilled with the idea of congressional drug testing this week.
“I think the whole idea is crazy,” McGovern said. “The idea that we’re going to drug test people who are poor or fallen on hard times I think is just a lousy thing to do.”
Both Reps. Richard Hudson and Ted Yoho supported the food stamp drug testing provision. Yoho, who once received food stamps himself, said he had no problem taking a drug test as a member of Congress.
“I would if it was required,” he said. “Yeah, absolutely.”
Courts have upheld the constitutionality of drug testing for workers and students ― but not candidates for elected office. In a 1997 case the Supreme Court struck down a Georgia law that required drug tests for candidates for state offices.
Justice Ruth Bader Ginsburg noted that state officials admitted there was no reason to suspect a drug problem among candidates for office and that if there was one, people would notice it without testing because candidates are subject to “relentless scrutiny” by the public and the press.
“Their day-to-day conduct attracts attention notably beyond the norm in ordinary work environments,” Ginsburg wrote.