Editor’s Note: This month marks 20 years since Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, better known as “welfare reform.” The Act emphasized moving from “welfare to work” and replaced the guaranteed cash assistance of the Aid to Families with Dependent Children (AFDC) program with a block grant, called Temporary Assistance for Needy Families (TANF), to states.1
To mark this anniversary and the very real impact the law has had on our client population, we have gathered brief reflections from 15 welfare-law experts who were engaged in the debates and implementation of welfare reform at the time. The 20-year mark is a good time to consider what we have learned, where we are now, and—most important—where we want to go from here and how we can get there.
Olivia Golden, Anne Erickson, and Deborah Harris describe the immediate effects of welfare reform: its implementation in the Clinton administration, the advocacy that took place in the states to curb the law’s potential harm to our clients, and its effect on poverty lawyers. John Bouman, Cindy Mann, Wendy Pollack, and Margaret Stapleton highlight unique pieces of the law regarding immigrants, health care, domestic violence, and low-income fathers of color. Mark Greenberg shares the perspective of the Obama administration and its recommendations for improving TANF. Kate Kahan and Steve Savner point out the major structural changes that must happen before women, particularly women of color, can have equal footing in the work world. Gina Mannix and Marc Cohan remind us not to give up on litigation as a tool for economic justice. And Elizabeth Lower-Basch, Jim Weill, and Liz Schott spell out specific recommendations for the advocacy community as we move forward.
The Important Role of Administrative and State-Based Advocacy
Twenty years ago I was responsible for writing the federal regulations that implemented TANF in its first decade. Shortly after the welfare law was passed I was appointed acting assistant secretary of the U.S. Department of Health and Human Services and confirmed as assistant secretary a few months later. Here I reflect on the path from then to now, when TANF largely fails to support poor families through either cash or work and reaches a sharply diminishing share of poor children. Such failure, with other changes in jobs and the safety net, contributes to an increasing number of truly destitute families. To try to understand what happened and offer some lessons, I focus on the trajectory after the law was passed.
In my new role as assistant secretary I hoped to develop federal regulations that would maximize the statute’s positive opportunities and avoid damage to children and families from its restrictive provisions. The potential positives included an increase in resources above the amount that states would have gotten under the previous AFDC program and greater authority for states to spend that money on workforce development and child care for low-income families (among them, low-income working families, largely left out of AFDC). The potentially damaging new provisions included time limits on receiving assistance, restrictions on counting education and training toward participation requirements, and the end of the federal requirement to serve all eligible families. Because of the enacting Congress’ hostility to the federal role in overseeing welfare programs, the statute specifically limited our authority to regulate. We knew that the block grant’s structural problems and the troubling debate around its passage would make maximizing the positives and minimizing the negatives difficult to build and sustain, but striking such a balance was the best option and one we undertook with real hope.
National legal aid and policy advocates with many years’ experience in shaping welfare policies and in rulemaking gave extremely helpful input; they drew on their deep knowledge of the statute, program operations, and policy context to make powerful and feasible suggestions. One key insight—ultimately reflected in the regulations—was that, according to the best reading of the statute, many of the most restrictive provisions, such as the time limit and participation rules, applied only to families served with federal funds, not those served by state maintenance-of-effort funding.2 This aspect of the regulation allowed states to use so-called separate state programs to work more flexibly with families who needed extra time or help or who were engaged in education and training. Advocates similarly helped us think through the treatment of services for a broader range of low-income families. For example, the final rules allowed only the refundable portion of state tax credits for low-income families to count as state maintenance-of-effort spending; this structure encouraged the creation of state earned income tax credits (EITCs) but did not allow states to use scarce TANF dollars for broad-based tax reductions. And the regulations implemented the statute’s “high performance bonus” by recognizing states for positive steps such as expanding child care and helping participants keep jobs and move up.3
For state advocates, the new resources in TANF and the opportunities opened up by the regulations offered some leverage to influence state policy and budget decisions and led to some early wins. Reports by the Urban Institute in the first decade found little evidence of a “race to the bottom” in state policy.4 Some states certainly chose damaging policies, and caseloads fell. But states also enacted policies—such as the earned-income disregard—that were helpful to families; removed provisions that limited access by two-parent families; maintained (and, in some cases, raised) benefit levels; and expanded child care assistance.
TANF is now in tatters. It helps less than one in five poor children, with extremely low benefit levels and few meaningful work activities.
But results became much grimmer thereafter. First, from the perspective of Congress, the regulations were not restrictive enough. Nine years after TANF, in the Deficit Reduction Act of 2005, Congress changed the statute to override key portions of the regulations, including the flexibility in using state maintenance-of-effort resources and the high performance bonus.5 Under pressure to meet required work-participation rates, many states adopted increasingly harsh policies.
Second, even more damaging, no resources were ever added to TANF except the temporary boost through the American Recovery and Reinvestment Act of 2009.6 Total resources have declined by 33 percent due to inflation, and states have redirected resources from all of TANF’s key components—cash assistance, employment and training activities, and child care—to other purposes.7 After states put resources into other budget items when the program was flush, they often chose not to pull them back as need grew and total dollars shrank; instead they held off benefit increases, cut cash assistance caseloads, and shrank work programs and child care transfers.
TANF is now in tatters. It helps less than one in five poor children, with extremely low benefit levels and few meaningful work activities.8 Despite our hopes when we wrote the regulation, the sharp decline in funding and the devastation of TANF’s role arose from the original block grant design—and should drive us to fight hard against block grants even when they offer new money up front.
Yet effective state advocacy did make a difference.9 It improved the lives of millions of low-income people, for example through increased child care funding and state EITCs. And some of the good choices that states made when money was available—at the start of the block grant and again under the American Recovery and Reinvestment Act—led to policy innovations, such as novel job training and subsidized employment strategies, that can guide advocacy. As we aim for urgently needed reform, both the failures and the successes can help chart the course.
Trying to Manage the Confusion, Corral the Chaos
When Pres. Bill Clinton signed off on welfare reform in the summer of 1996, the reform signaled not just the “end of welfare as we know it” but a seismic shift in state and federal responsibilities in meeting the needs of our nation’s poor.10 Welfare reform wiped out federal entitlements— AFDC, the Job Opportunity and Basic Skills Training programs, and Emergency Assistance repealed in the stroke of that one signature. Welfare reform eliminated the floor of federal protections and allowed unprecedented design control over our country’s safety net to devolve to the states. Ushering in a massive new block grant, TANF, welfare reform completely upended the federal-state fiscal relationship.
Welfare reform was massive, confusing, and frightening. It imposed time limits on federal benefits, prohibited states from using federal funds to help certain teen parents, and established new work rules and new definitions of work activities. It aimed some of its harshest provisions at legal immigrants and barred them from receiving Supplemental Security Income and food stamps.11
As we in the states reeled from the news and analysis coming from our colleagues in Washington, D.C., we quickly realized the critical role we would need to play in educating and galvanizing advocates at the local level and working with our state lawmakers as they began to tackle the needed implementation at the state level. Here in New York we needed to act fast; Gov. George Pataki was already crafting his own take on these changes, developing the required state plan, and insisting that harsh provisions were required by the new federal law and that the legislature should just adopt the “implementing” plan. But we had some time; it was August, and the legislature was not due back until January.
As we in the states reeled from the news and analysis coming from our colleagues in Washington, D.C., we quickly realized the critical role we would need to play.
We immediately held a round of training—all-day sessions that laid out all the major provisions of the federal law and noted what was allowed, what was required, what was optional, and just how significant and far-reaching the state’s actions would be. We trained legal aid staff, antihunger advocates, faith groups, child care providers, and welfare advocates. Off across the state we went forming, rallying, and educating local advocacy networks.
By January the rhetoric was heated, and the governor was demanding action. He called out the Democrats who controlled the Assembly as being soft on welfare fraud, coddling those who refuse to work, and being unwilling to adopt what their darling President Clinton had so famously signed into law.
We kept the local advocacy networks active and called on the legislature not to abandon its most vulnerable constituents. We organized letters and postcards. We worked at a panicked pace with the progressive umbrella group, the Council of Churches, to educate the lawmakers and their staff. January, February, March—every Tuesday morning at 8:00 the Council of Churches hosted a briefing in the legislative office building.
We briefed the legislators and staff on the time limits and reminded them that even though they could not use federal funds past the time limit, they could certainly use state funds. We briefed them on the teen-parent rules, learnfare, workfare, and the block-grant construct. We reminded them that the New York Constitution required the state to provide “aid, care, and support” to the needy and told them that they would need to find a way to give that assistance.12 We said that, yes, the state was allowed to be harsh and mean-spirited but was not required to be. We pointed out where the federal changes allowed the state to be more flexible in its approach to those in need. We noted that if a person was entitled to federally funded assistance, then the state was entitled to federal payment in providing that assistance. That got the legislators’ attention.
Worried that the Assembly leadership was caving into the rhetoric, we worked quietly for weeks with a small group of progressive legislators to draft a comprehensive bill that would take the best of the federal law and soften the worst of it. We met after hours and on weekends and pulled one last all-nighter over pizza and the keyboard. Those progressive members introduced the bill just before the more conservative forces working with the speaker of the Assembly could get their bill in and set the Assembly Democrats’ starting line too far to the right. This strategy was not without risk: the progressive member who took the lead was stripped of his committee chairmanship and was forced to move to an office in a dark corner of the legislative office building where he had no conference room or copier.
A core and committed group of legislators felt empowered because they were informed. Advocates around the state were active from start to finish. The final bill was not what we wanted, but we ended in a much better place than we would have been if we had not begun in a well-informed, progressive place.
Ending Welfare Lawyers as We Knew Them
I started work as a legal services lawyer in 1976, twenty years before “welfare reform.” For the first two years, I was assigned to family law. Then I switched to public benefits with a subspecialty in family law. “Public benefits” included AFDC and general assistance, social security and Supplemental Security Income, Medicaid, and unemployment insurance. I worked in all of these areas as well as family law, and sometimes I plunged into subjects about which I knew even less.
The heyday of welfare litigation was already past when I became a public benefits lawyer. In a law school class taught by Ed Sparer, the welfare law pioneer, I read King v. Smith, striking down AFDC “man in the house” rules, and Goldberg v. Kelly, establishing the constitutional right to notice and a pretermination hearing in welfare cases.13
We also read cases that went the “wrong” way: Dandridge v. Williams, flatly rejecting an equal protection challenge to Maryland’s maximum family benefit of $250 a month regardless of family size, and Rosado v. Wyman, confirming states’ broad discretion under the AFDC statute to cut welfare benefit levels.14
Despite the failure to establish a constitutional or federal statutory right to basic subsistence, welfare lawyers in the mid-1970s still saw lots of opportunities. By that time most states had welfare manuals or regulations that laid out the rules and were available to advocates and sometimes to the public. In Philadelphia, where I was practicing, we could usually persuade a local welfare office to comply with the rules through informal advocacy, and, if not, thanks to Goldberg, we could go to a fair hearing. Federal or state court was also an option—dicier than in an earlier era but still offering a reasonable chance of success. We had a number of legal handles: Had the welfare office correctly applied the state rule? Did the state rule comply with the governing state statute and the federal AFDC statute? Did the rules and the statute comply with the state and federal constitutions? Because legal aid lawyers and paralegals saw hundreds of cases a year, we had a lot of information about how the rules were being applied and a huge pool of cases from which to choose for systemic advocacy. The National Welfare Rights Organization was dissolved in 1975, but state and local welfare rights organizations continued to guide legal aid advocacy and sometimes served as organizational plaintiffs in litigation.
Besides ending welfare as we knew it, welfare reform ended welfare law as we knew it.
Welfare advocacy was satisfying. We were fighting the government, not individual landlords, employers, or other people in poverty. An injunction or declaratory judgment changed the rule or practice for thousands of people. Getting relief in individual cases was also satisfying; we got to tell the person sitting in our office that she would get her benefits, and we felt that our legal training had made a small, positive difference.
Federal statutory changes in the 1980s made succeeding in a court challenge tougher, but welfare advocates plugged away. Westlaw reports 4,159 state and federal cases that mention AFDC in the 17 years from 1979 through 1996.15
Welfare reform ended welfare as we knew it and fulfilled Bill Clinton’s 1992 campaign promise.16 Welfare reform also ended welfare lawyers as we knew them. In the 17 years from 1998 through 2015 Westlaw reports only 1,824 cases that mention TANF or AFDC, less than half as many as in the earlier 17-year period.17 In 2015 only 52 reported cases mention TANF or AFDC compared with 215 in 1996, the year before welfare reform went into effect (see fig. 1).
More analysis is needed to determine if welfare litigation actually declined as dramatically as the number of reported cases that refer to AFDC or TANF. I would not be surprised if welfare litigation did drop steeply. Welfare cash assistance caseloads plummeted—from 4.7 million in 1995 to 1.6 million in 2014.18 The drop in the number of AFDC and TANF cases reported in Westlaw is roughly consistent with the caseload decline (see fig. 2).
With fewer families receiving cash assistance, fewer are likely connecting with an advocate, and advocates who see fewer cases are likely identifying fewer litigation issues. Legal aid programs may have shifted increasingly strained resources elsewhere because they see fewer welfare cases. To compare legal aid representation before and after federal welfare reform, I searched for cases where the law firm name contained the word “legal.” This, of course, leaves out many legal aid programs, including my own.19 Still only 173 (10 percent) of the post-welfare-reform cases that mention AFDC or TANF had “legal” in the firm name, compared with 1,259 (43 percent) of the pre-welfare-reform cases (see fig. 3).20
If welfare lawyers, particularly legal aid lawyers, no longer litigate welfare cases to the extent we once did, the drop in the caseload and overburdened legal aid programs are only part of the explanation. Another part is that, besides ending welfare as we knew it, welfare reform ended welfare law as we knew it. The federal statute no longer requires participating states to grant benefits to families who meet federal eligibility conditions. Indeed, the federal statute now says only who is not eligible, not who is eligible. For the most part, the federal statute and regulations no longer offer grounds for challenging state welfare rules and policies.
Welfare recipients have disappeared into even more crushing poverty.21 The federal welfare law that developed between 1935 and 1996 is gone. Welfare litigation appears to have dropped dramatically. However, a huge need remains for advocates to make sure that families in desperate poverty at least get what they are eligible for under state policies and rules. In addition to making a difference for individual families, legal representation in these individual cases can form the knowledge base for systemic advocacy to improve state welfare programs and block cuts in benefits and eligibility. Legal challenges may be viable under state statutes and regulations, federal statutes such as the Americans with Disabilities Act, or state or federal constitutions. In general, however, systemic welfare advocacy now is more likely to occur in state legislatures and state bureaucracies than in the courts. Some legislative and administrative advocacy makes major positive improvements, such as the elimination of the welfare family cap rules in California, Illinois, and Minnesota.22 Other legislative and administrative advocacy stops proposed cuts. Although “welfare reform” ended welfare lawyers as we knew them, a role for welfare advocacy continues.
I am not an expert in immigration law and never have been. But, like many of us who specialized in public benefits and more general poverty law, I realized I had to pay closer attention to at least some of the issues affecting noncitizens when the Personal Responsibility and Work Opportunity Reconciliation Act cleared Congress and was signed into law in 1996.
The Act was the beginning of an attack on legal immigrants, in addition to the continuing antipathy to undocumented immigrants, who had never been eligible for most forms of federally funded public assistance anyway. The Act resulted from the perfect storm of hostile immigration ideology and budget hawk ideology. The Act blocked many legally present people from eligibility for most federally supported forms of public assistance—Supplemental Security Income, food stamps, and TANF—to the tune of over $23 billion in budget cuts (about 44 percent of the total of the cuts in that aggressive budget-cutting legislation).23
The new restrictions on eligibility for legally present noncitizens were complex and confusing.24 The implementing agencies adopted internally inconsistent or incorrect rules and made mistakes in applying the rules, especially for “mixed status” households; even eligible noncitizens would be denied eligibility or blocked by endless and confusing demands for forms of proof. Applicants had to get expert help.
The Act resulted from the perfect storm of hostile immigration ideology and budget hawk ideology.
Congress immediately began to soften somewhat the rules for particularly sympathetic immigrant groups, such as elderly or disabled refugees seeking legal status and citizenship.25 This was an early manifestation of the ambiguity of the politics around immigration. On the one hand, some politicians like to play to anti-immigrant sentiment among some Americans. On the other hand, compelling immigrant stories prompt support from many Americans, including many in the growing communities of naturalized and second-generation citizens. Ham-fisted anti-immigrant policy can backfire. This tension continues.
Take, for example, the Deficit Reduction Act of 2005. It introduced the requirement that, to prove eligibility for Medicaid, everyone, including citizens and people already receiving benefits, had to produce original proof of citizenship or legal status.26 While this requirement could be expected to dampen applications for benefits among immigrants (because any increase in hassle and official hostility has that kind of deterrent effect), the greater impact turned out to be on citizens, especially vulnerable ones. Legally present immigrants generally have possession of the documents allowing them to be in the country. But millions of Medicaid recipients have no access to their original birth records: many African Americans were not allowed to be born in hospitals or receive official birth records in parts of the country in the early 20th century; many seniors live in nursing facilities and have no memory or contact with anyone familiar with their birth circumstances; homeless people, people with mental illness, victims of disasters, foster children, and many other groups out of touch with their original birth records emerged among the millions threatened by this ham-fisted approach. Recognizing a potential disaster and prodded by a nationwide class action lawsuit, the Bush administration adopted rules that effectively grandfathered into continuing Medicaid eligibility all of the eight million elderly and disabled people already receiving either social security or Supplemental Security Income benefits.27 A few months later, Congress passed a “clarification” that it had not intended the new requirement to apply to foster children.28
For the moment, the states are left to decide whether to offer state-funded benefits programs or to elect the option for a state-federal match. Some states have been taking action ever since the welfare law was enacted. In Illinois, for example, we have a state-funded income-support program for aged, blind, or disabled refugees whose citizenship applications are taking longer than the allowed seven years under federal law for Supplemental Security Income eligibility; child care subsidy programs are implemented through charitable nonprofit organizations, and the law exempts those nonprofit organizations from being required to look into citizenship; pregnant noncitizens are eligible for health care coverage, as a means of extending emergency coverage to the citizen-child-to-be; all children—including the documented children ineligible for federally funded coverage as well as the undocumented—are eligible for Medicaid (or look-alike) coverage.29
Even amid the ongoing national immigration debate, Illinois just passed with substantial bipartisan support two measures extending public benefits eligibility to subgroups of noncitizens ineligible for federally assisted benefits. One was an extension of the health care coverage for noncitizen children; the other was new eligibility for state-funded cash, food, and medical assistance for trafficking survivors applying for T visas, other serious crime survivors applying for U visas, and applicants for asylum. Some states are rethinking the ham-fisted approach.
We have learned not to put all our eggs in the national basket and just spectate during federal gridlock. In many states, even unlikely ones, we may make progress on eligibility for key benefits, regardless of immigration status.
A Milestone in Health Care Coverage
The law that replaced the AFDC program with the TANF block grant had a silver lining for low-income parents—the delinking of Medicaid eligibility from welfare. Not only did that change protect the women who would no longer qualify for welfare under TANF rules from losing health care coverage, but also the change helped transform Medicaid from its origins as a welfare adjunct to the nation’s largest health insurance program. That transformation was completed under the Patient Protection and Affordable Care Act, which led to millions of low-income adults gaining coverage and record-low uninsured rates.30
Let us step back to 1996. At that time Medicaid eligibility for parents was generally limited to those who received AFDC (unless they were pregnant, disabled, or elderly). To qualify for Medicaid, a person had to be poor enough to qualify for welfare (the median eligibility level in 1996 was 45 percent of the federal poverty level), meet the AFDC nonfinancial eligibility rules (largely limiting eligibility to single-parent families with children), and get through the welfare-application process, which was no easy feat.31 Eligibility for Medicaid for children and pregnant women had been delinked from welfare in the 1980s, but the ties between Medicaid and welfare for parents meant that 41 percent of poor parents (i.e., with incomes of less than 100 percent of the federal poverty level) were uninsured in 1997.32
Welfare reform did not start out as a bill that would help low-income parents get health care. In fact, as originally drafted, welfare reform would have resulted in millions of parents losing coverage. By ending the entitlement to cash assistance, imposing new requirements for people to receive TANF, and authorizing use of TANF funds for purposes other than income support, the law resulted in large drops in the rates of people qualifying for cash assistance. Without a fundamental change in Medicaid law, the adults losing TANF (or not qualifying for TANF in the future) would have lost health care coverage as well. To avoid this harm, the bill was amended, at the end of the heated welfare debate, to delink Medicaid eligibility for parents from eligibility for welfare.
The delinking provision made two significant changes in Medicaid law.33 First, it required states to cover parents in Medicaid at least at the eligibility levels that had been in place for AFDC.34 Second, it set those welfare levels as the floor, not the ceiling, giving states the option to raise eligibility above AFDC levels. The floor was a critical protection for very poor women, but the option allowed states to extend Medicaid to a broader group of low-income working parents. Seventeen states and Washington, D.C., had expanded coverage to parents up to at least the federal poverty level by the end of 2010.35
The law that replaced the AFDC program with the TANF block grant had a silver lining for low-income parents—the delinking of Medicaid eligibility from welfare.
The Affordable Care Act took the next big leap. To close the coverage gap for low-income parents as well as other nonelderly adults, the Act extended Medicaid eligibility to 133 percent of the federal poverty level.36 Adults who have incomes above that level and do not have affordable coverage through work can buy insurance through the exchanges and receive premium tax credits and cost-sharing subsidies to defray the cost. A new coverage paradigm was established with Medicaid at the foundation.
The U.S. Supreme Court intervened, however, and the Medicaid expansion became optional for states.37 Today 31 states and Washington, D.C., have expanded Medicaid.38 Enrollment jumped by 35 percent in the expansion states.39 This enrollment boost helped drive down nationwide uninsured rates for nonelderly adults to 13 percent.40 The nonexpansion states still live by the welfare-law rules, with the median eligibility level for parents stuck at 44 percent of the federal poverty level in 2016.41
The welfare law opened the door, and the Affordable Care Act, with its enhanced federal match for Medicaid expansion, welcomed states to end the coverage gap for poor adults. We need all states to take that step.
The Unfulfilled Promise of the Family Violence Option
The numbers were startling—between 50 percent and 80 percent of women receiving AFDC were past or current domestic violence survivors.42 Welfare reform was on the horizon with its mandatory work requirements, child exclusion policies, and time limits on receiving assistance, among other new federal and state requirements. Antipoverty advocates shared a widespread concern that these policies would harm current and future applicants and recipients, especially if the policies were not implemented in a constructive and thoughtful way, with the expertise and resources necessary to ensure that applicants and recipients were offered a supportive and effective way to transition from welfare to work based on individual needs. Instead welfare reform seemed to offer mostly a “race to the bottom,” with caseload reduction as the priority. Women’s advocates were particularly concerned about the impact on domestic violence survivors. Thus was born the Family Violence Option as part of TANF.43
The Family Violence Option contains three key provisions for states to implement: (1) screen applicants for domestic violence while maintaining confidentiality, (2) make referrals to counseling and support services, and (3) grant good-cause waivers of TANF requirements “in cases where compliance with such requirements would make it more difficult for individuals receiving assistance under this part to escape domestic violence or unfairly penalize such individuals who are or have been victimized by such violence, or individuals who are at risk of further domestic violence.”44 In spite of advocates’ efforts, the Family Violence Option is optional for the states, but all states have adopted some form of the option.45
Women’s advocates were particularly concerned about the impact on domestic violence survivors. Thus was born the Family Violence Option as part of TANF.
The number of families receiving AFDC or TANF has been on a steady decline (except for a slight rise during the recession that began in 2008) from its historic high in 1994 of 5.1 million families to 1.7 million families as of December 2013.46 However, the percentage of TANF recipients that report domestic violence victimization has not diminished.47 Thus the need for the Family Violence Option remains. But no national information or data have ascertained if and how the Family Violence Option is being implemented, including how many applicants and recipients are being screened, referred to support services and counseling, or granted waivers from TANF requirements. The studies that do exist present a dismal picture.48
For the Family Violence Option to be effective, at minimum, domestic violence survivors must understand that they gain some benefit from disclosing that they have been abused. The culture of the TANF agency must be one of understanding, flexibility, and support, with survivors’ safety being paramount. Protocols and procedures must be clear and consistently followed. Referrals must be appropriate and resources sufficient to address the violence and its consequences. And, most important, applicants and recipients must be informed that there is such an option. We know that, for the most part, this relay of information is not happening and that domestic violence survivors do not dare apply for TANF assistance, let alone disclose the abuse. The risks are simply too high and the benefits too low. Their reluctance to apply does not mean that survivors do not need the assistance; their reluctance simply means that domestic violence survivors are making the best choice for themselves and their children. The Family Violence Option was intended to prevent this no-win situation that only makes domestic violence survivors and their families poor and keeps them poor. We know what works. Let us make it right.
A Voice for Low-Income Fathers of Color
When welfare reform was coming down the pike in the mid-1990s, we tried to get the fathers of low-income children onto Congress’ radar. We had been involved in advocacy for low-income minority fathers for many years, mainly through our work with the Paternal Involvement Project, a Chicago foundation-supported initiative for which we did policy advocacy. At every opportunity we talked about the importance of these fathers in their children’s lives and about the fathers’ needs for assistance so that they could be effective nurturers and providers. We have continued to be advocates for this group in the decades after welfare reform.
We talked about the importance of these fathers in their children’s lives and about the fathers’ needs for assistance so that they could be effective nurturers and providers.
On this anniversary I look back at what we said to Congress in 1995 and look around at the state of low-income minority fathers now. I will not talk here about the horrific treatment—which worsened during these same years—of men of color by our criminal justice system. Examining the unwise welfare and public benefits policies for men in conjunction with racially tinged overincarceration should be done but in a longer and more scholarly piece than this one.
We submitted testimony during the congressional hearings on welfare reform.49 Looking back, I remain confident that we had good ideas and the right tone. We said that the fathers were big fans of the parenting their children’s mothers were doing—a “remarkably good job given the difficulties they face because of their poverty”—and we said that the fathers played equally important roles in the lives of both their sons and their daughters.50
The bulk of our recommendations focused on two broad issues: access to benefits and services and improvements in the child support enforcement system.
Regarding access to benefits and services, we recommended that welfare reform give low-income, noncustodial fathers of children on welfare access to the welfare-to-work programs and some of the services available to the mothers on welfare and pay a monthly stipend to fathers who participate in those programs. We also recommended that Congress extend Medicaid to these fathers.
Our recommendations regarding child support were more specific because the Paternal Involvement Project fathers had had a lot of experience with the child support program. (There was and is a lot of truth to the statements that the child support system and the criminal justice system are among the very few government programs that touch low-income men.) Regarding child support, we recommended
- that the federal child-support program fund mediation, counseling, and parent education in addition to its too narrowly focused support establishment and enforcement activities,
- that welfare reform assist men in parentage establishment and modifications of child support orders and clarify that state child-support programs serve both parents, and
- that welfare reform require states to pass through more of the child support collected for AFDC families to those families and disregard the amount passed through in setting the families’ cash assistance amount.
That is what we recommended. Where are we now?
Of course, the biggest improvement is the Medicaid expansion to all low-income adults under the Patient Protection and Affordable Care Act. In those states that have expanded their Medicaid programs, Medicaid coverage is life-saving, life-altering, and life-improving for all newly covered adults, including low-income fathers of color.
Regarding fathers accessing benefits and services from the welfare menu available to custodial mothers, we have gotten almost nowhere; this is not all that surprising because mothers have not thrived under the states’ implementation of TANF either.
Progress in the child-support program has been much more encouraging. The federal Office of Child Support Enforcement’s National Child Support Enforcement Strategic Plan for 2015–2019, released in April 2016, reflects a broadening of insight into the state and needs of low-income children and both of their parents.51 The office’s commissioner, Vicki Turetsky (many welfare advocates’ colleague before she joined the Obama administration and a smart, strong voice for families in the administration), described this insight in her introduction to the strategic plan:
The national plan also recognizes that we are in the people business. Modern families, the low-wage labor market, and customer expectations have changed in the last 40 years. The plan focuses on a range of evidence-based and locally-tested strategies to collect more support payments by strengthening both the ability and willingness to pay support. The fact is that family self-sufficiency depends on regular payment of child support, and regular payment depends on a steady job. Further, children need more than money from their parents—they need parents who love them and cooperate with each other to care for them. The national plan identifies strategies used by states, tribes and counties to enforce and facilitate payment without undermining family relationships so that more families can do better economically and more children can thrive.52
Commissioner Turetsky’s statement reflects the inch-by-inch progress that has been made over the last 20 years in our collective thinking about low-income men and their crucial roles in their families. The federal fiscal year 2017 budget proposal gives more insight into where child support could be heading.53 If the budget proposal were enacted by Congress, the child-support program would be freed up to be a much more family-friendly program by, for example, passing through much more of the child support collected for TANF families to those families, allowing retroactive adjustment of child-support obligations, requiring states to review and adjust child-support debt owed to the state and discourage accumulation of unpaid child-support debt during incarceration, limiting interest charged on child-support arrears, and even allowing and eventually requiring all states to include parenting-time opportunities in child-support orders.
Much needs to be done, and policymakers need to learn about the reality of low-income fathers’ lives. They could learn a great deal from two recent books: Doing the Best I Can: Fatherhood in the Inner City and Failing Our Fathers: Confronting the Crisis of Economically Vulnerable Nonresident Fathers.54 Both books give much-needed insight into the real worlds of low-income men and propose practical solutions to the challenges they face.
Administration Proposals Would Strengthen TANF’s Effectiveness
The 20th anniversary of TANF offers an opportunity to look at TANF’s strengths and weaknesses and to consider how to improve the program’s effectiveness in helping families in need and helping parents find and succeed in employment.
TANF had its strongest effects in increasing employment among single parents and contributing to child-poverty reduction in the first years after the law was enacted. This progress essentially ended in 2000. Accordingly more needs to be done to make TANF more effective in both raising employment and reducing child poverty. While the TANF block grant structure has allowed important flexibility, less than half of TANF funds are now being spent on the core activities of basic income assistance to poor families, work activities, and child care in nearly half the states. The share of eligible families receiving assistance has dropped from 79 percent in the mid-1990s to 32 percent in 2012. Thus we need to ensure that use of TANF funds is more clearly focused on reaching needy families and supporting the core activities for which the block grant was established.
The next administration and the next Congress will face a set of key issues about how to respond to concerns that have been raised about TANF’s performance and effectiveness.
Early in the Obama administration, with the enactment of the American Reinvestment and Recovery Act, states had access to additional TANF funds for ongoing and short-term assistance to struggling families and to support subsidized jobs programs. We strongly encouraged states to use the funds to assist families in need and develop or expand programs of subsidized employment. We were encouraged that this resulted in the largest expansion of subsidized employment in the United States since the 1970s and that some states expanded provisions of assistance.55 But basic TANF cash assistance remained far less responsive to the growing need than did other safety net programs, including the Supplemental Nutrition Assistance Program. And the progress in providing subsidized jobs was not sustained for the most part after funding under the Act ended, although we continue to emphasize to states that it remains an allowable use of TANF funds.
Throughout the administration, we have focused on building a research agenda and strengthening technical assistance for states to improve the effectiveness of their programs in connecting families with employment and being more responsive to families in need. This includes research initiatives relating to career pathways, sectoral employment strategies in health care, subsidized and transitional employment, more effective job-search strategies, coordination with other parts of the workforce system, the potential applicability of behavioral economics research, exploring how to strengthen executive functioning and self-regulation skills, and two-generation strategies. We have initiated a Systems to Family Stability Policy Academy to work intensively with a set of jurisdictions that are seeking to improve the effectiveness of their TANF programs and the responsiveness of programs to families in need. And we have revamped TANF financial reporting to give much more information about how block grant funds are being used.
We have also urged Congress to act to strengthen TANF. Our budget proposal for the 2017 fiscal year asks Congress to
- increase the TANF block grant by $8 billion over five years—the first increase in basic block grant funding since the program was created;
- limit states’ use of federal TANF and state maintenance-of-effort spending to families with income at or below 200 percent of the federal poverty level in order to ensure that expenditures are more effectively targeted;
- add “reducing child poverty” as a new purpose of TANF;
- require that more than half of TANF funds be used for the core benefits and services of assistance, employment, and child care;
- develop a better accountability structure focused on helping families get and keep jobs;
- allocate $2 billion over five years for a new TANF economic response fund that would operate more effectively than the current contingency fund; and
- repurpose the current TANF contingency fund so that its funding is used for key initiatives such as subsidized employment and two-generation demonstration projects.56
We do not yet know if Congress will legislate on TANF in the remainder of this year. If not, the next administration and the next Congress will face a set of key issues about how to respond to concerns that have been raised about TANF’s performance and effectiveness. We hope that this administration’s research, technical assistance, policy guidance, and budget proposals will contribute to the discussion of how to move forward.
Changing Structures to Yield a Decent Income for All
AFDC and its state precursors were developed for women, typically widows and children, when women were largely excluded from the paid labor market. AFDC required that cash aid should be offered to all eligible families, but it never provided benefits sufficient to escape poverty.
In the 1960s and 1970s, as more women broke through barriers to enter the labor market, single mothers’ efforts to achieve financial security were hindered by occupational segregation, lower wages, limited opportunity for advancement, and the absence of labor standards and supports that are critical for single mothers in particular. During the years leading up to welfare reform in 1996, work requirements within the AFDC program were stiffened particularly through waivers of various federal AFDC requirements to allow for state-run “experiments.” The goal of these changes was to force women receiving aid into the labor market. Modest improvements were made in access to some work supports, such as child care, but little was done to alter the fundamentally inhospitable labor market that poor single mothers confronted.
We cannot ignore that the labor market continues to be rife with discrimination against women and particularly women of color.
The myth of the irresponsible mother on welfare focused on blaming poor women, particularly poor women of color, for poverty rather than focusing on broader, systemic economic causes.57 This myth paved the way for the TANF block grant in 1996, which has drastically limited, and for many eliminated altogether, access to cash assistance and has increased deep poverty across the nation.58
The Great Recession reminded us that poverty results from multiple, complex factors and that solutions need to be robust enough to tackle the problem. We cannot ignore that the labor market continues to be rife with discrimination against women and particularly women of color.59 The result is that we have neither programs that give aid to those who need it nor a labor market that offers living wages and necessary benefits for single mothers.
To begin to fix the failure of our labor market and the need for support for low-income families and working-age people, we must tackle the disparities that have been built over generations by structural racism and sexism.60 One aspect of this work should involve significant new public investment, particularly at the federal level, in people and communities with high levels of poverty and unemployment to create good jobs for residents and to repair their communities.61 We also need to enact the full complement of solutions, including paid leave, earned sick days, fair scheduling, and access to quality, affordable child care and adequate transportation, to support women and families.
As we take steps to build an economy that delivers good jobs for all who need them, we must explore new cash aid strategies that are broad-based and nonstigmatizing and that supplement wages for those who have jobs and supply an adequate income for those who are not in the labor market.
Our country is not on track to ensure that people’s basic needs are met, much less to ensure that people have enough to thrive; to put our country on such track is our mission. To change course and achieve the broadly shared goal of a decent income for all, we need to build the power and capacity of low-income people, especially low-income people of color, to change their communities and public policies for the better. This can be achieved only by making a fundamental commitment to racial and gender justice and giving voice to and expanding the power of the most marginalized communities in the United States.
Room for Advocacy in Promoting Economic Justice
TANF was a momentous step backward for national policy on child poverty. We offer these reflections as veteran antipoverty lawyers with the National Center for Law and Economic Justice; under our former name, Center on Social Welfare Policy and Law, our organization was instrumental in supporting the welfare rights movement in the 1960s and achieving historic U.S. Supreme Court victories expanding access to AFDC.62
TANF has failed as a safety net program for families. Less than 25 percent of families in poverty receive assistance. Benefit levels are further below the poverty level now than in 1996.63 Disturbing evidence points to persistent racism embedded in TANF policies and administration.64
Childhood extreme poverty has grown to shocking levels while new evidence shows the importance of adequate income early in a child’s life and the enduring harms of growing up in poverty.65 The number of households living on less than $2 in cash income per person per day has skyrocketed, with single-mother households and racial minorities especially vulnerable.66
The 1996 welfare reform emphasized work, but the labor market has failed dismally to produce adequate jobs at decent wages. The massive loss of decent jobs, stagnant wages, the growth of contingent part-time work, enduring gender and racial discrimination, and wage theft make rising out of poverty extraordinarily difficult for families.67 TANF is ineffective in helping parents secure work when work is available and in protecting their families when work is unavailable or impossible.68
Welfare reform emphasized work, but the labor market has failed dismally to produce adequate jobs at decent wages.
Remedying these problems will require significant structural changes. Building the public and political will to establish a 21st century social safety net for children and an economy that offers decent jobs is a daunting long-term national challenge that is likely out of reach in today’s environment.
Nonetheless, work has been and can be done to protect children and families and to promote economic justice for families. Ground-breaking advocacy to protect access to public benefits and secure the rights of low-wage workers has done more than work at the margins. For example, our organization’s litigation has protected access to the Supplemental Nutrition Assistance Program—the major remaining near-universal income-support program—and other critical supports such as Medicaid and child care for tens of thousands across the country.69 In some cases we secured protections for TANF applicants and recipients. Our policy advocacy has protected TANF access for people with disabilities. Through litigation we have used the TANF work requirement as a sword by extending the protection of civil rights and workers’ rights laws to workfare workers to ensure that these workers are treated with fairness and dignity. We have supported and partnered with low-income community groups seeking a voice in shaping the public policies that affect their lives. Most recently we have joined with low-wage workers organizing for fair pay, safe working conditions, and freedom from discrimination.70
The last two decades have seen much needless pain and a focus on punishing the poor. Yet we remain hopeful that, as the national conversation on income inequality continues, we will find real opportunities down the road to restore a fundamental safety net and a new wave of creative advocates to help shape it.
How to Fix TANF
Twenty years after TANF was created, it is failing in both of its key missions: serving as a safety net for the poorest families with children and supplying these families with work-related activities that will allow them to escape poverty. Fixing TANF to achieve those goals requires a comprehensive bill that (1) creates a national floor while retaining state flexibility to do better, (2) reforms the performance measures to get the incentives right, and (3) expands federal funding, which has lost one-third of its value due to inflation.
Creating a Floor. States have flexibility under TANF to set benefit levels, sanctions, and time limits (see table 1). When the 60-month federal time limit was established with much controversy, no one imagined that a state would adopt a 12-month lifetime limit on benefits, as Arizona did.71 The number of families receiving cash assistance plummeted in the wake of welfare reform and stayed comparatively low even in the face of the Great Recession. While 4.4 million families received assistance in an average month of 1996, just 1.6 million families, 38 percent of whom were in California, received assistance in 2015.72 Moreover, the families that do receive assistance remain deeply poor due to starkly inadequate benefit levels.
Sources: U.S. Census Bureau, American FactFinder (n.d.); U.S. Department of Health and Human Services, Characteristics and Financial Circumstances of TANF Recipients, Fiscal Year 2014 (March 25, 2016); Urban Institute, Welfare Rules Database (n.d.).
One useful step toward correcting states’ uneven spending of their TANF funds would be to require that states spend at least a minimum share of TANF and related state funds on core activities, including cash assistance and supports for those receiving cash. Because even this would leave sharp disparities among states, policymakers should also consider a federal floor for benefits and time limits and should ensure, such as by making the child tax credit fully refundable, that the neediest families benefit from programs that do not depend on state choices.
Performance Measures. The “work participation rate,” which has been the primary performance measure for TANF, does not give states an incentive to operate effective programs, particularly for the most disadvantaged workers with children.73 Many states’ TANF programs claim credit for people already employed and offer little else, with 22 percent of all recipients counted toward the work participation rate in unsubsidized employment and 6 percent in job search, while only 5 percent participated in education and training such as vocational education or satisfactory school attendance.74
The work participation rate has become increasingly problematic; as our economy has evolved over the last 20 years, good jobs now require a postsecondary credential, and many people without a high school diploma or equivalent—particularly young people—find obtaining any type of steady employment to be impossible. The work participation rate should be improved to simplify tracking and give states credit for engaging people in education and training as well as activities, such as mental health services, needed by many participants.
The law also needs reform to make measures correspond to the stated goals of TANF. The caseload-reduction credit, which rewards states for cutting caseloads by any means, should be replaced by an employment credit. Data should be collected on outcome measures, such as indicators of the well-being of poor children and families, that reflect the safety net and employment goals of TANF. These indicators should cover both families receiving help through TANF and those left out—otherwise states can exclude families with impunity and concentrate their resources on just a few. States should be accountable for the choices that they make and that affect the ease or difficulty of needy families’ access to benefits.
Ideas such as equitable funding, regular cost-of-living increases, and a federal floor on benefits would put us on the road to fixing TANF’s flaws.
Funding. Since TANF was created, the real value of the basic TANF block grant has declined 33 percent due to inflation.75 Moreover, those states that historically paid the lowest benefits and had the lowest caseloads got the least money under the formula for the block grant. Varying rates of growth have only made the disparities worse: based on 2013–2014 data, Florida now receives $448 per poor child, while New York receives $2,160 per poor child.76 TANF needs additional funding, distributed on the basis of the number of poor children rather than of historical spending patterns, and a strengthened requirement for states to commit their own funds.
TANF also needs a new contingency fund that automatically responds to economic downturns. During the Great Recession, the number of families receiving assistance actually fell in nearly half the states.77 TANF overall was far less responsive to need than other programs, such as the Supplemental Nutrition Assistance Program. While the emergency fund established in 2009 was powerful in encouraging states to develop subsidized employment programs and allowing caseloads to rise in the face of constrained state spending, the fund had expired well before the need for assistance ended.
Next Steps. A serious conversation about fixing TANF is long overdue. The House Ways and Means Committee last year shared a TANF reauthorization discussion draft that opened the door to revising the work participation rate but did not move forward with it.78 President Obama’s 2017 budget proposal includes proposals to increase TANF funding, create a new contingency fund, and require more funds to be spent on core TANF activities.79 Building on these excellent steps and adding more ambitious ideas such as equitable funding, regular cost-of-living increases, and a federal floor on benefits would put us on the road to fixing TANF’s flaws.80
Stopping the Contagion of the TANF Disease
The change in 1996 from AFDC to TANF was just one particularly harmful shift in a decades-long series of changes in wages, workplace benefits, and public income supports—a series that has inflicted great hardship.
The average household income for the bottom two quintiles of the population in 2014 was below 1995 levels, even though the nation’s real gross domestic product had grown 61 percent.81 For the bottom quintile, 2014 average income was 9 percent below the 1995 level.82
The nation is appropriately concerned about the increase in inequality driven by growth in incomes at the top. Incomes at the bottom have declined significantly in absolute terms, with harsh impact on families and communities. The causes include the decades-long erosion of wages and benefits for the bottom, coupled with a decline in a range of government cash income supports.
Participation in TANF has collapsed, and benefits for those who still manage to participate have been eroded, because of the elimination of entitlements, the switch to almost complete state discretion, time limits, and other changes. TANF is not all that has shrunk. By the end of 2014 the share of unemployed Americans who received unemployment insurance benefits had dropped to its lowest point in decades.83 Workers’ compensation coverage has shrunk.84 State general assistance programs have all but disappeared.85 And the 1996 welfare law bequeathed us not only TANF but also harsh exclusions of documented immigrants from the Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income, and Medicaid along with other benefits cuts and eligibility cutoffs.86
At the same time that the safety net was shredded, the nation largely failed to build adequate new supports for a changing workforce. The damage to struggling Americans has been profound. It has been ameliorated by the expansion of public health care coverage, the broadened reach and deepened benefits of the earned income tax credit (EITC) and the child tax credit, the growth in Social Security Disability Insurance, and the growth of federal nutrition programs, especially SNAP and school meals.87 These mitigations, however, have been uneven in their impact (e.g., only a little more than half of the states have expanded Medicaid under the Patient Protection and Affordable Care Act). And overall the offsets—while important in their magnitude—fall short of equaling the losses and are under constant political attack.
What does this mean going forward?
First, we must boost employment rates, wages, and benefits to restore jobs as a source of adequate family support. When the private sector resumes its role of adequately supporting working people, the public role will be more effective and sustainable.
Second, public-sector jobs and job creation initiatives must be rebuilt—both to meet urgent national needs in the 21st century and to boost underemployed populations.
Third, the nation needs a system of adequate public income supports for those who are unemployed or are unable to work or cannot find work. That system must fit the 21st century workforce and family needs.
Fourth, we must keep the TANF disease from infecting what remains of the national safety net. Lawmakers propose a path to disaster when they propose to end entitlements, authorize arbitrary state disqualifications in programs, tee up federal dollars for major budget diversions by the states, and turn SNAP, school meals, housing programs, and other key supports over to the states. Those programs are lifting millions of people out of poverty and going far to support food security, to give health security and access, and to meet other crucial needs.
As I wrote a decade ago, “only the federal government has the capacity to confront” the “toxic mix of economic stagnation for the bottom half, persistent poverty, declining opportunity, and growing economic insecurity….”88 The nation’s politics, however, mean that such federal role can be sustained and improved only if the government’s share of the burden is manageable. The growing overload on federal programs driven by the weakening of wages and benefits in the private job market keeps threatening to push the federal commitment past the breaking point—politically, if not fiscally. A future of opportunity and economic security will depend on both employers and Congress meeting the needs of struggling Americans far more effectively.
The TANF Challenge—Holding States Accountable
TANF often is touted as a welfare-reform success, one that should now extend to other benefit programs. TANF caseload decline is one basis for the claims. The number of families receiving cash aid has dropped steeply under TANF, but this is not success when the number of poor and deeply poor families has grown.89 Boosters also seek to extend TANF work requirements to other programs, but advocates know that these more often serve to sanction families or restrict access to training programs than to offer economic opportunity.
The creation and the design of the TANF block grant, along with state actions, are key contributors to unhelpful work requirements and the deep erosion of a cash safety net. Changes in federal law could drive some improvements. Ultimately, however, with or without federal law changes, holding states accountable for improved TANF programs is going to be a state-level battle, led by state and local advocates, low-income families, and their allies.
I see three key action areas for improving state accountability under TANF.
Accessing Adequate Cash Assistance. TANF’s race to the bottom has been one of not only caseload decline but also ever-shorter time limits and ever-declining value of benefits. There are no federal accountability standards for states to provide a safety net. One such measure could be the ratio of families on TANF to families in poverty by state: For every 100 families with children in poverty, state TANF programs served only 23 in 2014, down from 68 in 1996.90 This TANF-to-poverty ratio varies across states and in 12 states is less than 10.91
Congress should hold states accountable for serving poor or deeply poor families by using a measure such as the TANF-to-poverty ratio. However, in the absence of congressional action, state advocates could push for tracking and reporting on access in their states or can simply use the existing data to expose a state’s track record.
Improving Employment and Earnings Outcomes. Despite 20 years of claimed success of welfare reform, we do not have good information about how well states are doing in preparing parents for and connecting them to jobs. The main work performance measure under TANF is the work participation rate; it looks at the extent of engagement of current recipients in specified activities, not at the employment rates or earnings of parents who leave TANF.92 In fact, a state can get as much credit for cutting a family off for any reason as for helping the family leave welfare for work. While a few states track employment or earnings outcomes, no standard requires that TANF programs lead to successful work outcomes.
Congress should add an employment and earnings outcome measure to replace or add to the work participation rate. And, if the work rate is retained, it should be modified so that states could have more space to do a better job with their work and training programs. There is bipartisan support for congressional proposals to make these TANF improvements. Here, too, whether or not Congress acts, a state could choose to improve its work programs and track outcomes for families, and advocates can push their state to do so.
Targeting Funding to Core Welfare Reform Purposes. Only half of state and federal TANF funds go to cash assistance, child care, and work and training activities; in some states much less than half goes to these core areas.93 States have increasingly used TANF as a slush fund to fill state budget holes or to enable tax cuts, literally taking food from the mouths of poor children. Congress should limit spending flexibility. But here, too, with or without federal law changes, state-level advocacy will be necessary to bring these funds back to the core welfare-reform purposes. New detailed state spending data coming out soon can help highlight state actions here.
The story of the last two decades of TANF is foremost a state-by-state story; so, too, will be the story of its future.Download this article