California Becomes Latest State To Try To Force Trump To Disclose Tax Returns
California is the latest state to try to force all Presidential candidates, including the President, to release their tax returns as a condition for getting on the ballot. It's not at all clear that this is permitted under the Constitution.
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.
This is all pointless, until PA, WI, MI, OH, or FL decide to stand up for what is right.
Dennison was never going to get California’s Electoral College votes anyway, so what’s the point?
Today in Both Things Are True:
1) Trump should release his tax returns.
2) This is an absolutely terrible way to do it and would set a very dangerous precedent that would cause people to *justifiably* scream blue murder when Republicans try to kick a Dem candidate off the ballot in a swing state.
“Dennison was never going to get California’s Electoral College votes anyway, so what’s the point?”
One point: if we ever do move to a national popular vote or the interstate compact kicks in, this would allow any big state to select the President by finding an excuse to kick his opponent off the ballot.
@Hal_10000:
Valid point
Given the increasing level of corruption and money laundering we’ve been seeing (plus the possibility of foreign actors getting their fingers in the pie), I think we’re going to find that somehow we’re going to have to include at least some sort of mandated financial audit of political candidates, no matter how squeamish it makes proclaimed Constitutionalists. Otherwise I suspect we’re going to see a rapid degradation of the system, both political and otherwise.
It seems frankly ridiculous that a higher level of scrutiny is demanded of some poor schlub trying to get a mortgage than someone trying to become POTUS.
@Hal_10000:
1) Unfortunate things happen when you install an active criminal in the White House.
2) Precedent is irrelevant, if Republicans had thought of this they’d have done it already.
Typical tactic of Voter disfranchisement from the Democrats just like their previous efforts of the Poll tax and Literacy tests.
Oh honey, nice try, but anyone who knows anything about history knows that you are full of shit…it’s Republicans who are trying to make it harder for people to vote…just look at what is going on in Florida right now…
I don’t think it will hold up in court, but I have no strong objection to making the Republicans fight it in court.
Given that we actually vote for electors, and electors than vote for President, I think there might be some more convoluted and enjoyable legal underpinning for this. Restrict electors from pledging to vote for a candidate that has yet to release their tax returns, perhaps, so the electors name appears on the ballot rather than who he claims he would vote for.
I would also be in favor of creating the Tea Party or the a Freedom Party as an actual political party, and getting some schmo to change his name to Donald J. Trump, and then working to get ballot access in swing states.
Ever give any thought that you are being played. For one thing, even a 5 year requirement only covers the period Trump has knowingly been focused on the White House.
In any case, we know there are many Lois Learners in the IRS and we’ve seen the acts of corrupt administrative state bureaucrats against Trump. Does anyone really think that if there was something in Trump’s tax returns they wouldn’t have been leaked by now? Someone would take the bullet of lucrative retirement and violate the law against IRS employee leaking taxpayer data.
It’s in Trump’s favor to let this issue fester in the media. Then if it goes against him, he releases. After all, Trump’s returns have been done by top tax accountants/attorneys for decades. And do you think he’ll have a paltry amount of charitable giving as Bernie and Beto had. The latter two are interesting since they had to know that they would release their returns but couldn’t bring themselves to donate to charity (for appearances).
If Dems ever want to learn from the GOP and do some voter suppression, just issue all voters a card at the door which says:
That should disqualify about 75% of the GOP base. 😀
Yes, Trump would never get CA’s Electoral votes. Yes, it’s unlikely this would pass constitutional muster in the best of times, with Gorsuch and Kavanaugh, it’s impossible. If it did somehow pass muster, and Trump were to lose, there would be an immense legal stink. The proper way to deal with this is for the electorate to recognize the obvious implications of failing to disclose and to vote appropriately.
It seems safe to assume every political professional in CA knows the above. They also know that Dems have no equivalent of FOX “News” and have to rely on the supposedly liberal MSM to publicize anything. So it’s a way to publicize Trump’s failure to disclose, and a good one. More power to them.
@JKB: Well, in the first place, it’s Lois Lerner, not Learner, and in the second place, Trump did say a few times that he’d release his returns–the last I can recall is that he’d release them after the election. Then he didn’t. I understand that this is not an issue for his most ardent fans, but, one has to ask–what is he hiding?
I bet you never do…the way you support Trump, you couldn’t possibly realize how you are being played…
@JKB: “Does anyone really think that if there was something in Trump’s tax returns they wouldn’t have been leaked by now?”
You might want to check the NY Times website about now. Here’s a small piece of what they found — Trump lost more money than any other taxpayer in the US three years running… losing a total of well over a billion dollars. My favorite part is the way he actually made money by pretending to be interested in taking over companies, letting the stock run up on his threat, then selling at the peak. Worked great for a couple of years, until everyone figured out he was completely full of shit and would never carry any of this through… and then he lost every penny he’d made.
@CSK: Trump is a spoiled rich kid who’s worked hard to make himself the poster boy for Dunning-Kruger. A criminal mastermind he ain’t. When challenged to provide returns, Romney had to massage them pretty good to show actually paying anything. (And probably filed amended returns as soon as he lost the election.) I suspect Trump is hiding how little tax he pays, some failed deals, petty crimes, some standard issue (for a rich guy) tax evasion, and that his income is not commensurate with his claimed wealth.
@wr:
Here’s the link to the NY Times report.
This covers 1985 to 1995. Candidates don’t usually release more than ten years of returns. So what El Cheeto is hiding is worse than this, or more revealing.
God loves a trier.
Good grief, there’s nothing that you can’t excuse this bozo from…your devotion is pathological…
Remember that Trump is the clown who wanted to put marble in the bathrooms of the Trump Air airplanes.
We’re not talking about someone with that many brain cells, obviously….
Oooh, this is sweet: NY State working on handing over Trump’s state tax returns?
Drip drip drip…..
I’m wondering if I can get a coherent argument about why disclosure is so important. He’s been under audit. Tax evasion can’t be the reason. Only mining for spin friendly political garbage seems plausible.
I would have argued for Obama to release his transcripts, but every time he opened his mouth it was painfully obvious why he didn’t. Only a fool didn’t understand.
Oh that’s rich coming from someone who supports another president who won’t allow his transcripts to be revealed…and if you think that Trump is smarter than Obama, you are as dumb as Trump…
@Guarneri:
How do you know that DT hasn’t been evading taxes?… Because he hasn’t been prosecuted for tax evasion? Are you confident that every year his taxes were paid in full on initial filing, that there were no instances where the IRS found that his return was incomplete or that something was misreported or inaccurate.
Disclosure is important. It instills confidence in a taxpaying population that the leader of the country is not drifting, and is paying his fair and legal share of the burden of being part of this country.
I suggest to you, it is that openness and honesty in detailing a candidate’s willingness to display their shared burden that informs the decision of candidates to release their tax returns.
Since you asked (why is it important), I would NOT vote for a candidate who could not or would not make his tax returns public. I suspect that most voters expect that transparency.
@grumpy realist:
You know what was worse, losing money on casinos.
I know a bit about the casino business (some of my friends in Vegas are industry insiders, and we talk), and right now making money off a casino is far from easy. But that’s because gambling’s been legalized all over the place. There are Tribal casinos all over the US, for instance, and gambling’s easy to come by in most states. Several countries have also opened up to casinos. So, competition is fierce.
Now.
Back in the mid-80s gambling was legal pretty much only in Nevada and Atlantic City. Casinos were so flush with money, they were even generous with comps and offered cheap food and accommodations. Not any more. A casino wasn’t exactly a license to print money, but you had to FUBAR things rather badly in order to lose money.
Golden boy Dennison managed it anyway. Huzzah!
What’s this!? Such a successful businessman! A real Master of the Universe…
please release me.
@JKB: “Paltry giving”? His “Charitable Foundation” paid a fine for self dealing and had to give away the remaining money. It’s not really “charity” if you’re giving it to yourself.
Those who live in glass houses should not throw rocks.
@Guarneri:
Don’t talk about coherent answers when you still can’t answer a simple question: what is the plausible, innocent explanation for why Trump insists that no other Americans be present when he blows, er, talks to Putin.
Why, Drew? Why?
You can’t even ty to answer it. And why? Because you know Trump is owned by Putin, and you can’t even pretend to think of an alternate explanation. It’s that consciousness of guilt that gives you away as a liar, and thus of no value in a discussion. Ask Schuler, he’s quite a bit smarter than you, maybe he could give you a cheat sheet.
@Kathy: yes the dimwit decided to build up two ritzy casinos and then have them compete against each other. A true Master of the Universe, that one.
And I suspect that after we dig out all the data and tracked down all the shell companies, we’ll discover that Trump has managed to piss away all his money and his entire empire has been propped up by smoothly flowing Russian cash. Which is another reason why he kowtows down to Putin and doesn’t dare say boo to him.
It’s obvious. A real billionaire doesn’t get involved in the chump change projects Trump did with Trump Steaks and Trump Vodka and all the other penny-ante silliness he got messed up in. It’s like a normal human being founding a company on digging out coins from behind the sofa cushions.
And now that the New York Times has started to reveal Trump’s financial losses, more and more people are going to realize exactly how much of a financial failure he truly is.
@Guarneri: “He’s been under audit.”
And you know this how? Oh, yes, because Trump has said so. Every single one of his tax returns has been under audit for years.
Which of course is patently ludicrous. And there is not a shred of evidence to support it. But you regurgitate it as fact, and then use that “fact” to “prove” some other point.
@Grumpy realist:
Trying to be overly charitable, perhaps he preferred to take over a spot and compete with himself rather than with someone else.
If so, he blew it. Look at my FUBAR comments above. Today two companies control most of the casinos on the Strip in Vegas, but they’re kind of segmented for different markets. Something apparently too sophisticated and complex for a “stable genius” to figure out.
@Guarneri:
Disclosure is critical when you have a failed casino owner bleeding cash (more than ANYONE ELSE in the country) who is linked to the mob and is being financed by the Russians. Talk about someone prime for being manipulated by foreign entities.
Well, those of you who predicted that The Trump Fan Club would find a way to rationalize the NYT report were dead-on right:
http://www.lucianne.com/thread.aspx/?artnum=968099
@Guarneri: You do understand that even if Trump has been audited every year since 1985, there’s absolutely nothing preventing him from releasing his returns while they’re undergoing audit–according to the IRS.
@grumpy realist:
Going to see? Which subbasement do you think were in now? When police officers start getting ambushed at traffic stops again, we’re back to Oakland 1967.
ETA:
No, I would expect it to be even more paltry–absolute dollars or relative to income, you pick.
@grumpy realist: Oh, not just marble in the bathrooms. He wanted solid gold fixtures in there. Plus solid gold seat belt buckles and solid gold door handles. The aeronautical engineers could never get him to understand that that sort of thing won’t fly. Literally.
@JKB: From a Buzz Feed article about George Romney releasing his tax information:
Problem solved. You’re right, I don’t need to see Trump’s tax returns because I already know that Trump has never in his entire lifetime conducted himself with honor, honesty, good will, concern for his fellow man, dignity, or any other favorable human quality.
And you don’t need to see them because you don’t care whether he has or not and would vote for sewer effluent if it had (R) next to its name. Good call!
@Grumpy realist: In fairness, he went in to those *alternative* ventures for the purpose of enhancing the *value* of his *brand.*
The fact that he really needed to be able to make money off them only makes the whole exercise pathetically sad.
@CSK:
Fuel is the biggest operating expense in aviation, and it’s also directly proportional to the weight carried. Therefore there is a drive to reduce weight by any means possible, as consistent with safety (and minimal comfort, I suppose).
Plus, the most fuel intensive phase of flight is takeoff. A shuttle service does lots of takeoffs in a day. So you naturally want the lightest possible plane to maximize profit.
Putting in marble is plain stupid. I doubt even El Cheeto would spend on solid gold fixtures (hey, you know what a solid gold belt buckle is worth? people would steal them in great numbers), but maybe gilded fixtures. Gold is deceptive because its high malleability allows you to make very thin gold object which seem to weigh nothing. In actual fact, gold is heavier than an equal volume of lead. So even gilded fixtures would be stupid.
But then, what is Dennison?