When the Supreme Court ruled in favor of one of four provisions of the Arizona state law focused on halting illegal immigration, it was a partial victory for the state. But it was a victory largely paid for by private donors, not Arizona taxpayers. To date, a legal defense fund set up by Governor Jan Brewer on behalf of the law has received nearly $4 million from 45,000 contributors. One of those contributors, Timothy Mellon, who does not live in Arizona and owns a private shipping company based in New Hampshire, gave $1.5 million. Matthew Benson, a spokesman for the governor, took some pride in this approach to paying the state's legal fees: "It's almost $4 million from private donors from every state in the country," he said. "It has allowed Governor Brewer to defend this immigration law, and do so at no cost to the taxpayers."
While the Arizona taxpayers paid no bills, this does not mean they incurred no costs. One clear cost is that the governor is to some degree now beholden to private, out-of-state donors, especially Mr. Mellon. Whether this would ever compromise her objectivity or representation of the State's interests, it would at least presumably give the larger donors access -- access that not everyone with potentially contrary interests on a particular issue would have.
Another clear cost is that the governor loses a sense of how important fighting for the state law is to her own constituents. Were they footing the bill, it's conceivable that some taxpayers would question their tax dollars being spent in this way as those costs mount (and they will do so since defending the law is not over). Yet, since they do not have to pay the legal bills, they are not likely to object to what she spends. Operating off-budget thus to some degree disenfranchises Arizona voters. They have less power or need to object and she has less need to listen.
Still further, how do the citizens of the state exercise meaningful oversight of a fund whose coffers are filled by private donors? Is it subject to the same level of scrutiny and accounting, including legislative and legal review that applies to funds raised through taxation?
Finally, the state's taxpayers are asked to make no sacrifices to pay legal costs. Paying taxes is always a sacrifice. It is one of the ways we engage people in the act of citizenship. Debates on how tax money should be used are another. By taking away the need to sacrifice and the need to debate, we weaken the meaning and practice of citizenship.
Getting funds from private donors for state legal costs is just one of the many ways that states and localities have outsourced citizenship in recent years. State lotteries raise billions each year, all money that would otherwise need to be raised through taxes. Governments have also sold off the rights to operate toll roads and parking meters, in exchange for lump sum and leasing payments that reduce the need to raise taxes. They sell naming rights to stadiums to avoid using taxes for construction and are even considering selling naming rights to everything from school cafeterias to bike trails to transit stations to turnpike exits. While many taxpayers view such methods as a good thing, saving them from having their taxes raised, these practices are not an unalloyed good. As Michael Sandel has forcefully argued in What Money Can't Buy, such practices can corrupt the public goods they fund. Is FedEx Field, where the Washington Redskins play, as meaningful a symbol of civic culture as the Robert F. Kennedy Memorial Stadium where the team formerly played? Outsourcing citizenship can weaken the bonds among citizens and between citizens and those who govern.
When we relieve citizens of their obligations to the government and each other and relieve those who govern from needing to consult voters, we weaken citizenship. What we may save in tax dollars today we may lose in democracy tomorrow.