Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty
Melish, Tara J., Yale Human Rights and Development Law Journal
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.
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. …