Maximum feasible participation of the poor: new governance, new accountability, and a 21st century war on the sources of poverty.

• Author: Melish, Tara J.

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to "strike away the barriers to full participation" in our society. Central to that war was an understanding that given poverty's complex and multi-layered causes, identifying, implementing, and monitoring solutions to it would require the "maximum feasible participation" of affected communities. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, an Office of Economic Opportunity was established--situated in the Executive Office of the President itself--to support, through encouragement, funding, and coordination, the development and implementation of community-based plans of action for poverty alleviation, as identified and prioritized by the poor themselves.

This Article urges a return to this practical, locally-responsive, yet federally-orchestrated orientation of U.S. social welfare law. It argues that while the regulatory and political context of the 1960s provided inauspicious ground for the early "maximum feasible participation" policy to effectively take root, four decades later, two broad paradigm shifts have yielded a new, more fertile opportunity framework. The first involves the shift in U.S. regulatory law away from earlier command-and-control structures favoring fixed rules and centralized enforcement, toward a New Governance model that privileges decentralization, flexibility, stakeholder participation, performance indicators, and guided discretion. The second is the concurrent paradigm shift in U.S. social movement approaches to poverty--what I call "New Accountability"--which similarly promotes local voice and inclusive participation, performance monitoring around human rights standards, and negotiated policymaking (rather than non-negotiable material demands and mass confrontation, the preferred tactics of 1960s activism). Supported by a renewed U.S. interest in collecting and reporting performance indicators for government programs, these two shifts converge to create a theory and policy-based environment in which it is both practically feasible and normatively coherent to re-embrace the participatory orientation of the early "War on the Sources of Poverty" strategy.

The challenge for U.S. social welfare rights law, I argue, is how to bring these two complementary paradigms together in constructive synergy to mount a 21st century battle against poverty. A set of national subsidiarity-based institutions to support this effort is proposed, each mandated to orchestrate and competitively incentivize targeted antipoverty efforts by all social stakeholders, while opening new institutional spaces for the active participation of the poor in all aspects of meeting the nation's poverty reduction targets.

INTRODUCTION

In 1970, the United States Supreme Court affirmed that the poor have a constitutional right to be heard in a meaningful manner before subsistence-based entitlements are terminated. (1) While the case-specific holding of Goldberg v. Kelly was narrow, limited to the procedural scope of the Due Process Clause where statutory subsistence entitlements are administratively terminated, (2) the Court's decision derived from a much broader principle of democratic self-governance and public accountability: the imperative of ensuring that the poor have the "same opportunities that are available to others to participate meaningfully in the life of the community." (3)

This principle of participatory self-governance, self-consciously inclusive of the poor, did not emerge sui generis from the Court's 1970 opinion. It derived from the normative milieu and formal political commitments of the 1960s in which Kelly was briefed and argued. (4) That era was one in which meaningful participation of the poor in identifying barriers to economic opportunity and defining poverty-alleviation strategies came to be seen as core to American democracy and post-war progress. Nowhere was this vision better exemplified than in President Lyndon B. Johnson's 1964 federal commitment to wage a "Nationwide War on the Sources of Poverty." In declaring that war, President Johnson affirmed the "total commitment" of the Executive, the Congress, and the nation "to strike away the barriers to full participation in our society," (5) as a means of addressing the profound inequalities of opportunity in post-war American society. (6)

To implement that commitment, Congress passed the 1964 Economic Opportunity Act, one of a series of coordinated federal anti-poverty programs designed to equalize opportunity and participatory engagement in all aspects of social, economic, civic, and political life. (7) That Act, like the War on the Sources of Poverty as a whole, had two distinct, yet equally essential components. The first, organized under Titles I, III, IV, and V, comprised a new set of federal legislative entitlement programs. Supplemented by other anti-poverty policies of the Great Society legislative agenda, (8) these federally-financed programs were designed to open new job opportunities in the labor market and to build human capacity through new services aimed at job training, work-study, adult basic education, school improvements, loans to rural families, and increased access to health care, child care, and legal services.

The drafters of the 1964 Economic Opportunity Act nonetheless understood that while such federal programs were necessary to any serious poverty alleviation initiative, they were insufficient by themselves. Without a congruent focus on community-based participation from below, they could not ensure that the practical day-to-day barriers to opportunity experienced by the nation's poor (including barriers institutionalized in the administration of poverty programs themselves) were systematically identified and targeted for removal. Nor could they ensure that community leadership, ingenuity, and resources were being effectively mobilized to find proactive solutions to the most serious causes of poverty identified locally in each community. Accordingly, proceeding on the understanding that neither voting rights, (9) federal income supports, (10) nor top-down professional provision of social services to the poor (11) by themselves were sufficient to guarantee equal opportunity and responsive policy solutions for all social sectors, especially historically marginalized ones, Title II of the Act mandated "the maximum feasible participation" of affected communities in the development, implementation, and administration of programs aimed at eliminating the causes of poverty. (12)

To establish a coordinating structure through which such participatory engagement could be effectuated, the Act thus authorized federal funding for the establishment of locally-administered community action programs (CAPs). Designed to mobilize local action and stimulate neighborhood involvement in the implementation of innovative, community-owned poverty-alleviation activities and strategies, such programs aimed to "give every American community the opportunity to develop a comprehensive plan to fight its own poverty." (13) Indeed, as President Johnson himself declared, community action plans based on maximum feasible participation would be "based on the fact that local citizens best understand their own problems, and know best how to deal with those problems"; (14) as such, they would be able to "strik[e] at the many untilled needs which underlie poverty in each community, not just one or two," with "components and emphasis [differing] as needs differ." (15)

At the same time, to ensure that this community-based problem--solving infrastructure did not degenerate into "a series of uncoordinated and unrelated efforts--that it perish for lack of leadership and direction" (16) --the Act went on to create an Office of Economic Opportunity. Through this national headquarters on poverty alleviation, housed in the Executive Office of the President and directed by the President's personal Chief of Staff for the War on Poverty, (17) the government was to act in an essential orchestrating role, "help[ing] [communities] to carry out their plans" (18) through concerted federal oversight, coordination, information sharing, and financial assistance.

In structuring its War on Poverty, the Johnson administration did not then understand the proper role of government as providing a one-stop federal solution to poverty "prepared in Washington and imposed upon hundreds of different situations." (19) Rather, promoting "a creative federalism," (20) it understood its role as affirmatively supporting, coordinating, and orchestrating a plurality of solutions percolating up from the grassroots where "the causes, not just the consequences of poverty," (21) could best be identified and where proposed solutions could be most attentive to localized needs, democratic experimentalism, cross-jurisdictional learning, and continuously evolving priorities.

This Article urges a return to this practical, locally-responsive, yet federally-orchestrated orientation of U.S. social welfare law. Specifically, it calls for a new twenty-first century Nationwide War on the Sources of Poverty that, like its predecessor, takes the active participation of those most affected by poverty, and their recognition within a nationally-orchestrated institutional framework of participatory planning, monitoring, evaluation, and review, as its central motivating policy commitment. Most importantly, it argues that given two coinciding paradigm shifts in the domestic policy environment--one in the regulatory apparatus, the other in social movement organizing strategies--the political moment for reengaging this participatory approach to poverty alleviation has never been more propitious than it is today.

In advancing this argument, this Article seeks to add an important and...