House panel slams, but Senate passes awful measure for drug tests at taxpayer expense, and more government.

(Sorry Neal. I’ve got to side with less government here.)

There must not be enough pressing State problems in the South Dakota to solve this year. Because we have not just one bill, but two, for legislators to drug test each other in a game of “you show me your drug test, and I’l show you mine.”   Except that the measure is incomplete, and will require – you guessed it – more government, and opens up issues of public disclosure, wasted taxpayer dollars, open government, and over-riding federal law:

From the Argus Leader:

On a 4-3 vote, the Senate Judiciary Committee split with representatives who voted down the measure the day before.

Supporters of the bill said the proposal was aimed at demonstrating leadership in the Legislature and providing evidence to voters that lawmakers aren’t using drugs during their time in Pierre. They said voting down the proposal as their peers in the House did would create negative optics for lawmakers.

and..

Lawmakers that supported the proposal also expressed concern about comments made by House representatives Wednesday that characterized the bill as a proposal based on “cynicism or grandstanding.”

“I want to apologize for the way you were mistreated,” Sen. Stace Nelson, R-Fulton, told Goodwin. He said he disagreed with the “mean girl petulant frat boy” attitude of his peer who made the comment.

Read it all here.

Well, call me mean or petulant too, but the measure is nothing but grandstanding. And silly grandstanding at that. Read the measure for yourself:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

Section 1. That the code be amended by adding a NEW SECTION to read:Each member of the Legislature shall submit for a drug test within two weeks of being sworn into office and within two weeks of the end of the legislative session. Any refusal to submit to a drug test or any positive confirmed drug test for the use of a controlled substance that was not prescribed for the member by a licensed health care provider shall be reported to the presiding officer of the house to which the member belongs for appropriate disciplinary action.

Read that here.

If you read the language, all it says definitively is that they have to do a test. Period.  The measure is pretty darned limited in what it lays out for the proposal. It doesn’t say who pays for the drug test, it doesn’t say what kind of test it is, it doesn’t say who administers the test. It doesn’t say who gets the results, it doesn’t lay out any penalties, it doesn’t note whether the results are public, private, etc., and so on.

It just says Each member of the Legislature “shall submit for a drug test.”

For starters, given this is a legislative proposal, let’s assume that it’s going to fall on the taxpayer. Despite it being a waste of taxpayer dollars.

Next, who exactly is going to administer the test? Will it be self administered with the “pee in a cup test strip?”  Or will this be a full blood panel screen administered and conducted by a physician? Because there’s a big difference in price.

And how exactly will this all be determined, because the law is silent? Will the law be amended before it goes to the Governor, or will it just be sloppily passed? Because in either case, we’ll need some government to make it work.

Now, here’s where things get even more interesting.

Who exactly will get the results?  The bill as written mandates testing. It is silent about who gets the results. It says “submit for a drug test within two weeks of being sworn into office and within two weeks of the end of the legislative session.”  Absent rules that would be set by the legislature (more government), conceivably, a person could do the test…. and then not authorize it’s release.

But let’s assume that they would go ahead and create more government and force them to sign a release. Because here’s where Federal HIPAA law – and possibly ADA (Americans with Disability Act) could come into play, depending on what the results show. And in many cases those federal laws supersede state law.

One source notes “According to the Equal Employment Opportunity Commission (EEOC), “if the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.”  So, would that prevent full results from being released to the presiding officer of the House the affected member is in?  And the legislature will probably need new rules or procedures (more government) to address those concerns.

If we start thinking about open government, this isn’t exactly a normal employer-employee relationship. It’s involving elected officials. While Federal employment/medical privacy laws will likely enter into the mix, we also have HUGE questions about open government that are going to become part of the conversation as well.

If an elected official is sanctioned as a result of a positive drug test, you can be darn certain that the State’s Media – including myself – are going to want to know who, what, when, and why.  And media that’s better heeled than I will probably ask their legal counsel to bring suit against the state to find out because of the compelling public interest.

There’s an open government concern that’s going to need to be addressed that isn’t mentioned in this bill.

I could on and on (and on), but this is a simple post about a short piece of legislation.

If as Republicans, we value the government which govern the least, and we believed Ronald Regan when he said “government is not the solution to our problem; government IS the problem,” then why are we looking for more government when there is no real need for it?

There’s no outcry. No one has been arrested. No one has shown the need to spend taxpayer money on this, or to make Government bigger to address it.

In fact, there’s no evidence that anyone in the legislature is using illegal drugs.  If someone actually had any evidence, I’d tell them to go fill out a report with the Attorney General, and let the State Drug Task Force investigate, make arrests where warranted, and move up the food chain to catch the people selling it.

That’s a far more effective use of everyone’s time than asking “random State Representative” to pee in a cup.