As I noted earlier today, Treasury Secretary Steve Mnuchin has denied a request from the House Ways And Means Committee to see copies of the Presidential tax return. This, of course, is just the latest front in a battle that has been going on since 2016 when then-candidate Trump declined to make public copied of his tax returns as every other candidate has for roughly the past 40 years. As a result, Democrats at the Federal and state levels have been trying a number of methods to get their hands on these returns, believing that the President must be hiding something. In that regard, California has become the latest state to try to force the President and other candidates for President to release their tax returns as a condition of getting on the ballot:
The California state Assembly is weighing another bill aimed at obtaining President Donald Trump’s tax returns, marking the state’s second attempt to pass such legislation in the last two years.
The bill, which passed its first major hurdle in the state Senate late last week, would require all presidential candidates to submit five years’ worth of tax returns in order to appear on the state’s primary ballot in March 2020.
It joins 18 other states in proposing such legislation.
The bill would apply to all candidates but is clearly aimed at Trump, who has long broken with presidential precedent and refused to release his tax returns. Eight of his Democratic challengers have done so, shedding valuable insight on their sources of income and gifts to charity.
“President Trump’s refusal to release his income tax returns has broken a time honored, bi-partisan tradition which has weakened our democracy and his jaw dropping business conflicts have now put the security of our nation at risk,” state Sen. Mike McGuire (D) said in a statement when he introduced the bill in March.
The California Legislature passed a similar measure in 2017, but then-Gov. Jerry Brown (D) vetoed it when it got to his desk, saying he hesitated “to start down a road that well might lead to an ever-escalating set of differing state requirements for presidential candidates.”
Current Gov. Gavin Newsom (D) has not indicated whether he’d sign or veto the bill if it gets to his desk. He was, however, the first gubernatorial candidate in his race last year to release copies of his own federal tax returns.
California is, as noted, not the first state to attempt to use ballot access laws as a means of forcing the President and other candidates to provide copies of tax returns. As James Joyner noted in a post late last month, there is similar legislation that has been proposed, voted on, or considered in as many as twenty other mostly Democratic-controlled states, although it does not appear that such legislation has been adopted into law in any of these states as of yet. The laws would apply to all candidates for President, of course, but it seems fairly clear that the effort is aimed primarily at Trump who became the first Presidential candidate in over 40 years to refuse to release any of his returns. At the time, the President claimed that he could not do so because he was under audit by the IRS. When it was pointed out that there is no law preventing someone who is being audited from releasing their returns publicly, Trump changed his story to say that he was being advised by lawyers and tax advisers not to release the returns until after the audits were concluded.
Notwithstanding Trump’s refusal to release returns, the public has gotten at least some glimpse at his tax picture, but it hasn’t been particularly illuminating. In October of last year, just about a month prior to the election, a reporter at The New York Times received two pages of Trump’s 1995 tax return from an anonymous source who had somehow obtained a copy of at least part of the return. The most notable thing about that partial return was that it showed that, at the time, Trump was carrying what would have likely been a multi-year deduction related to business losses in the early 1990s that, in theory, could have legally allowed him to avoid paying any real tax liability for a decade or more. More recently, MSNBC host Rachel Maddow made a big show out of the fact that she had obtained a partial copy of Trump’s 2005 tax return, which in this case didn’t really show anything extraordinary. As with the October leak, Maddow only received the two pages of Trump’s Form 1040 and not any of the Schedules or supporting documents that were likely filed with the return(s), so there was nothing particularly illuminating about the leaked documents. One notable thing about the return leaked to Maddow, though, is the fact that it did not appear that Trump was still taking the same sizeable loss deduction he had ten years earlier, although that doesn’t mean that he wasn’t still taking advantage of it, as permitted by law, in years after 1995. In any case, as I said, neither of these releases is particularly illuminating, but that isn’t stopping some activists from forcing Trump to reveal more about his taxes
Additionally, it should be noted that releasing tax returns isn’t necessarily going to tell us much about the finances of Donald Trump or any other candidate for President. Even with all the attached schedules, tax returns actually tells us very little about a candidate’s financial status beyond what their total income was in a given year, what deductions they took advantage of, and how much they actually paid in taxes. To be honest, the financial disclosures that candidates are required by law to file with the Federal Election Commission are actually a more informative snapshot of their finances and wealth. That doesn’t mean the tax returns are totally irrelevant, though. The fact that a candidate might take advantage of a number of tax deductions at least tells us something about them and, as noted above, what deductions they take may end up being a political issue in and of itself. Finally, there’s something to be said for the idea that a candidate for President shouldn’t be the sole judge of what is and is not relevant information in a political campaign.
Because of this, many states are considering this ballot access route to require candidates like Trump to make their tax returns public. What is unclear is whether or not it is permissible under the Constitution. That matter has been the subject of significant debate.
Back in 2017, Harvard Law School Professor Laurence Tribe, who writes at CNN in a piece co-authored by Norman Eisen and Richard Painter of Citizens for Responsibility and Ethics argue that the states are in fact authorized to pass such laws:
Our federal Constitution allows states to create ballot access requirements that ensure that the ballots for every office, including the office of presidential elector, are comprehensible and informative.
A line must of course be drawn between permissible ballot access laws and impermissible attempts to add qualifications to those specified in the federal Constitution. But our research and analysis lead us to conclude that tax return disclosure laws such as the one proposed in California resemble ballot access laws in structure, impact, and purpose much more closely than they resemble laws imposing additional qualifications for presidential office.
As a result, we believe these laws comport fully with the U.S. Constitution.
Unlike prohibited qualifications, these laws do not impose substantive requirements on candidates beyond those imposed by the Constitution itself; that is, these laws do not limit which candidates may run for office based on any particular information in their tax return. Thus, they do not create an insurmountable barrier in advance to any set of individuals otherwise qualified under Article II of our Constitution. Instead, these laws require federally qualified candidates to comply with a relatively minor process of tax disclosure. That is something competing candidates can and should readily do in order to allow voters to make more informed judgments about those contenders’ characters or backgrounds.
The states have legitimate justifications for providing their voters with this important information. The proposed laws mandate transparency rather than interposing obstacles that some would-be candidates cannot overcome.
Tax returns provide information that is more broad, specific, and reliable than the candidate financial disclosure that is currently required. Candidate financial disclosure forms are generally designed to identify and prevent conflicts of interest — and tax return information could serve a similar function.
Indeed, this could be particularly important for a presidential candidate, as the president is exempt from some (but not all) federal laws governing conflicts of interest once in office. Prevention may be not just the best, but the only available medicine in some situations.
Pepperdine University Law Professor Derek Muller, meanwhile, responded with an Op-Ed in The New York Times that argues that such laws would unconstitutionally impose additional qualifications on those eligible to run for President beyond those prescribed by Article II of the Constitution, something not permitted by the general authority granted to the states regarding the regulation of ballot access:
The Supreme Court has repeatedly held that states can’t use the ballot as a political weapon. In 1964, for instance, Louisiana listed candidates’ race on the ballot. Louisiana maintained it was just providing truthful information to the voters of the state. The Supreme Court struck down the statute on the ground that the ballot was not a vehicle to direct voters to consider a candidate’s race.
In the 1990s, Missouri asked congressional candidates to take a term limits pledge; if they refused to do so, the state would indicate on the ballot that the candidate “declined to pledge to support term limits.” The Supreme Court struck down that ballot provision, too.
Both those cases stand for the proposition that states cannot use their ballots to achieve preferred political or policy outcomes — such as burdening those who prefer to keep some, or all, of their tax information private.
The Supreme Court has, of course, permitted states to regulate access to the ballot for the purposes of separating out serious from frivolous candidates. (Common mechanisms include a modest filing fee or securing a sufficient number of voters’ signatures on a petition.) But the New Jersey bill isn’t intended to ensure that only serious candidates appear on the ballot. It’s intended to get Mr. Trump’s tax returns.
It’s understandable that many state legislatures now want presidential candidates to disclose their tax returns: Mr. Trump’s refusal to disclose was, and continues to be, an issue of concern to many voters in New Jersey and across the country. But the ballot is not a form of leverage that may be used to pressure political candidates to meet legislative demands. This issue is best addressed, as it has long been, by the political process.
Of the two arguments, it appears to me that Muller makes the far more persuasive case than Tribe and his co-authors and that any state law requiring candidates for President, or any Federal office, to release tax returns as a price for ballot access, would most likely be held unconstitutional.
The most relevant case on this issue would appear to be US Term Limits v. Thornton, the Missouri case which Muller cites in the text above. In that case, Missouri purported to use ballot access laws as a backdoor to imposing term limits on Members of Congress by denying them ballot access if they have served more than the permitted number of terms, which in that case was three terms for Members of the House and two terms for Senators. Such candidates could still seek reelection via a write-in campaign, but they could not run as either the nominee of a particular party or an Independent candidate. The Court ruled that this provision, which actually became a provision of the state Constitution via a ballot measure, violated the Constitution because it imposed requirement for holding the office of Congressman or Senator beyond those set forth in Article One, Sections Two and Three, and the Seventeen Amendment, which set forth the residency and age limitations for holding those offices.
The majority opinion written by Justice John Paul Stevens goes through the history behind the qualifications clauses for Congress, the powers of the states to regulate ballot access and the Tenth Amendment argument that was made in favor of the law before ultimately concluding that the attempt to impose term limit by regulating ballot access was unconstitutional. The argument used by the majority in Thornton would seem to be equally applicable to a state law requiring candidates for President to
The argument used by the majority in Thornton would seem to be equally applicable to a state law requiring candidates for President to would seem to be equally applicable to a state law requiring candidates for President to release their tax returns. As with the Missouri term limits law, such laws would effectively impose qualifications beyond those set forth in Article II, Section One, Clause 5, which have been slightly amended by virtue of the 22nd Amendment to include a bar against a candidate from serving as President for more than two terms, in violation of the Constitution. The effort of Tribe and his co-authors to argue that such laws do not impose additional qualifications is quite simply unpersuasive.
The proposed New Jersey law that Muller references, for example, would bar any Presidential candidate from appearing on the General Election ballot unless they have released tax returns for the five most recent years prior to the election in question. Clearly, this is something beyond a law governing ballot access, such as the requirement that a candidate for office submit a certain number of signatures to qualify for the ballot and is more analogous to the term limits that Missouri sought to impose in Thornton. Because of this, it seems clear that a law requiring a candidate for President to release their tax returns as a price for getting on the ballot would be unconstitutional.
These legal arguments are unlikely to put a stop to the political forces that continue to push for Trump to release his returns, of course, and while the protests and moves at the state level are unlikely to change his mind, we could still be heading for a confrontation over this issue before the 2020 election. Somewhere, these activists are likely to succeed in some state or another. At that point, lawsuits will be filed and the matter will head to the Courts and, eventually, the Supreme Court. Unless the Supreme Court rejects the central argument of Justice Stevens’s majority opinion in Thornton, though, the legal fate of such laws seems clear. In any case, the outcome of the 2016 election would seem to indicate that, while voters believe candidates for President should release their tax returns, they don’t necessarily base their vote on whether or not that has actually happened.
