My Background with Federal Background Checks

I remember my background check. I thought it was intrusive, a violation of my privacy and unnecessary. I’d never done anything that would embarrass the federal government. I’d never abused drugs, broken the law, or required treatment or psychological counseling.  I found the questions invasive and embarrassing. Worse yet, many of my neighbors and coworkers were pressed into answering open-ended questions about my honesty, integrity and values. And I really resented being asked to urinate into a cup. 

Back then, I was young, idealistic and liberal. I bristled at the very thought of government intrusion. For the privilege of serving the President of the United States, however, I decided to endure it all.

Now, 17 years later, the U.S. Supreme Court has passed on the very question that's been grating at the back of my mind ever since: Does the government have the power to insist that federal employees candidly answer intrusive personal questions — including whether they have received treatment or counseling for illegal drug use?

For the Supreme Court, the answer was so clear, it was a slam-dunk: 8-0 voting yes. (Justice Elena Kagan recused herself from the case because of her prior involvement in the issue as solicitor general.)

The Justices ruled on Wednesday in a case that pitted federal contract workers for NASA against the government. The NASA workers lost their challenge to have intrusive government background investigations struck down as a violation of their right to privacy.

The Court said the government does have the power to insist that federal contract employees candidly answer certain personal questions — including whether they had received treatment or counseling for illegal drug use.

Writing for the Court, Justice Samuel Alito said the challenged background checks — including open-ended questions to neighbors and others about a worker’s honesty — are reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.

At the center of the case was an allegation that intrusive background investigations violate a constitutional right to “informational privacy.”

While the majority opinion sidestepped the question of whether a right to “informational privacy” actually exists in the Constitution, the Court implied such a right exists, insofar as it found that the government’s background checks did not violate that right in the case of the NASA contractors.

The government’s interests as employer…combined with the protections against public dissemination provided by the Privacy Act of 1974, satisfy any [related constitutional privacy issue].

Federal civil service employees have faced background checks since 1953. When I arrived in Washington in 1993, I was subjected to an extraordinary investigation of my background, in which friends, relatives, neighbors, coworkers and schoolmates (dating back to kindergarten) were interviewed — some extensively, about my moral character.  Of course, my own questionnaire and interview (under oath) were extremely lengthy and extraordinarily thorough. 

At the time, I could not understand the need for such intense scrutiny. Once I joined the Clinton administration, however, I began to see the value of the vetting process. Having worked for the federal government, with access to classified materials, not to mention regular and direct contact with the President and Vice President, U.S. representatives and the heads of various government agencies, I now fully appreciate the need of those agencies to carefully screen employees, be they civil or contract employees. Indeed, after 9/11, the background checks were expanded to federal contractors. 

That includes scientists at Jet Propulsion Laboratory, which has been in operation since 1958 and is run by employees of the California Institute of Technology. Although it is a NASA facility, its workers aren’t federal employees, they are contractors. The scientists sued, arguing that the Constitution should prevent the government from requiring individuals to confess intimate details of their lives, unless the government can first demonstrate a legitimate interest justifying the intrusion.

I don’t often agree with Samuel Alito, but in this case, I do. 

We reject the argument that the government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are ‘necessary’ or the least restrictive means of furthering its interests.

The government asks whether in the past year the applicant has "used, possessed, supplied, or manufactured illegal drugs." If so, the applicant is asked to "provide information relating to the types of substance(s), the nature of the activity" and other details relating to treatment and counseling received. That seems a reasonable inquiry. And it certainly seems reasonable for the government to inquire about the trustworthiness of people working on multi-billion dollar projects such as space telescopes. 

The numbers tell the rest of story. About 74,000 contractors have undergone background checks in the past five years. Only 128 were disqualified.

Two justices, Antonin Scalia and Clarence Thomas, issued concurrences to Alito’s majority opinion. While they agree with the outcome, they would have gone even further and would declared that there is no constitutional right to informational privacy.

I would not go so far as to find no right of "informational privacy," for when the government pries into the private lives of ordinary citizens, it raises grave concerns. I do agree with the majority's decision as to prospective employees, however, because I am confident there is no constitutional right to work for the federal government. Any citizen uncomfortable with the background check required for federal employment can simply opt out.

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.