Democratic experimentalism, the procedural component of the "new governance" movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems.
Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law--decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights--all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. Those same features prevented the country from acting on the widely shared concern about poverty in Katrina's wake. Indeed, almost all progress in antipoverty law has come from centralized, nonparticipatory, and non-experimentalist policymaking.
Democratic experimentalism assumes consensus on the nature of problems and the propriety of government action, reliable metrics for measuring success, the luxury of time, the lack of situations requiring centralized policymaking, and deliberation that is costless in most respects. It also requires that one side risk political capital to establish an experimentalist system. These assumptions have not been fulfilled in antipoverty law. Little suggests that they will be met in other fields either.
Further progress in antipoverty law must come from centralized policymaking based on substantive consensus among many, though not all, liberals and conservatives. This consensus will follow many substantive components of the new governance, including reliance on market incentives. Democratic experimentalism should learn from debates about deliberative democratic theory that have wrestled with its key weaknesses.
INTRODUCTION I. DISAGGREGATING DEMOCRATIC EXPERIMENTALISM A. Key Assumptions Underlying Democratic Experimentalism B. The Consequences of Failures in the Experimentalist Assumptions C. How Democratic Experimentalist Regimes May Be Established D. Ethical Concerns About Democratic Experimentalism II. DEMOCRATIC EXPERIMENTALISM AND ANTIPOVERTY LAW A. The Deliberative Model of Antipoverty Law 1. Decentralization, Deliberation, and Privatization in the 1960s 2. Deliberative Antipoverty Law Since the War on Poverty's Demise a. Decentralization b. Participation and Privatization c. Experimentalism 3. The Centralist Undercurrent in Antipoverty Policy 4. Departures from the Model: Moments of Heightened Passion a. The Reagan Budget Cuts b. The 1996 Welfare Law c. Hurricane Katrina B. Political Sources of Antipoverty Law 1. Major Forces Supporting Antipoverty Programs a. Humanitarians b. Social Insurers c. Redistributionists d. Providers e. Instrumentalists f. Liberal Expressivists 2. Antipoverty Programs' Critics 3. Origins of Democratic Experimentalism in Antipoverty Law III. CONSTRUCTING A SUBSTANTIVE CONSENSUS IN ANTIPOVERTY LAW A. The Politics of a More Robust Substantive Antipoverty Consensus B. Elements of a Plausible Antipoverty Consensus IV. WHITHER DEMOCRATIC EXPERIMENTALISM? A. The Value of the Antipoverty Law Example B. The Future of Democratic Experimentalism CONCLUSION INTRODUCTION
Few could ask for a call for justice more passionate than President Bush's speech from Jackson Square after Hurricane Katrina: "[P]overty has roots in a history of racial discrimination, which cut off generations from the opportunity of America," he said. "We have a duty to confront this poverty with bold action.... [L]et us rise above the legacy of inequality." (1) Later that month, the President joined many others in deeming Katrina a wake-up call for the country on poverty: "What a lot of Americans saw was ... poverty that they had never imagined before.... Poverty is ... an important issue, ... and it needs to be addressed in a significant way." (2) Similarly, Business Week declared that "[i]f U.S. political leaders continue to concentrate on shoring up the finances of the country's wealthiest citizens and shredding the poor's safety net, the poverty rate will spiral higher." (3) Secretary of State Condoleezza Rice insisted "that race and poverty are a huge problem in the United States, and we've got to deal with that." (4) Republican activists encouraged the President to "confront the issue of poverty 'with bold action' ... to lead the party back to [the] greatness" it had under Lincoln. (5) Finally, as if on cue, the day after Katrina hit the Gulf Coast, the Census Bureau reported that poverty had increased for the fourth consecutive year. (6) The nation seemed poised for action.
It was not to be. Not only did the country fail to take any new initiatives to address poverty generally, it largely abandoned for a second time the same disaster victims that had already suffered so grievously from the slow response by the Federal Emergency Management Administration (FEMA). These victims were scattered to unfamiliar cities, warehoused in isolated trailer camps, and often prevented from returning to their communities. Largely bipartisan bills offering sweeping relief to disaster victims died without floor action, (7) and a few months later, President Bush signed a tepid legislative response to the disaster. The legislation largely excluded low-income people and provided sweeping cuts in Medicaid and new conditions on cash assistance likely to drive most states to gut their programs. (8) Although much of the news media showed impressive staying power, other events and controversies eventually pushed Katrina's survivors from the headlines. Coverage of the Hurricane's second anniversary almost unanimously painted a picture of governmental failure and continued hardship for victims.
Cynics may question the sincerity of some of those who flocked to the antipoverty banner. That explanation, however, is plainly insufficient: the public's outpouring of concern was so broad and intense that even insincere politicians should have found it advantageous to be swept along.
For most of the last quarter-century, beginning with President Reagan's deep cuts in public-benefit programs, activists have assumed that weak public support was the main obstacle to more robust antipoverty laws. (9) The absence of any meaningful assault on poverty in the wake of Katrina suggests a more fundamental, structural problem with the dominant model of antipoverty lawmaking that this country has adopted. The decentralized, participatory, and deliberative approach the United States has relied upon to design antipoverty policies over the past four decades has prevented it from developing, and mobilizing supporters around, a coherent, plausible proposal. We have grossly overestimated the value of deliberation and underestimated the importance of achieving a meaningful consensus about the substantive principles of antipoverty law. Indeed, all substantial advances in antipoverty law that we have achieved are attributable to a second track of centralized, substantive, pragmatic policymaking on low-salience issues.
This critique of decentralized, participatory decision making goes against the grain of contemporary legal scholarship. Cass Sunstein, for example, has extolled the virtues of minimalism, defined as resolving policy questions on the narrowest possible grounds without seeking a broader substantive consensus. (10) He urges "promot[ing] the democratic ideals of participation, deliberation, and responsiveness" and "leav[ing] fundamental issues undecided." (11)
Even more prominently, democratic experimentalists have called for very much the same approach to policymaking that antipoverty law has taken for at least the past four decades: decentralizing authority, broadening participation in policymaking, expanding reliance on the private sector, basing future policies on what experiments have found to be successful, and rejecting substantive individual rights. (12) In essence, the dominant approach to antipoverty law over at least the last four decades has been an experiment in democratic experimentalism. To be sure, the development of antipoverty law has not followed all of the choreographed moves described in democratic experimentalist theory--it certainly has not produced the salutary results that theory envisions. Nonetheless, its embrace of many major democratic experimentalist principles can provide valuable insight on their potential and limitations.
A major obstacle to systematic evaluation of democratic experimentalism has been its presumed novelty. If few examples exist so tar, we have no choice but to accept the case studies that the theory's proponents identify to demonstrate its potential. In that case, a fair assessment of democratic experimentalism's likely outcomes would have to await its implementation on a wide enough scale to allow unbiased sampling. Moreover, the relative newness of the democratic experimentalists' hand-picked examples prevents examination of their durability over time. As a result, recognizing that antipoverty law has embraced the major tenets of democratic experimentalism for several decades can provide the means to assess whether this is the right path for antipoverty law and to question democratic experimentalism's prospects.
The deliberative approach to antipoverty law has displayed several major shortcomings. First, it has obstructed resolution of fundamental normative disagreements about society's responsibility to low-income people. Instead of establishing local processes to search for non-ideological answers that work, it has sustained the most extreme positions on both the Left and the Right even after it became clear that neither side could prevail in national policy debates.
Second, proceduralism has insufficiently broad normative appeal to defend antipoverty efforts against their critics: those...