SACRAMENTO >> President Donald Trump broke with 40 years of precedent when he refused to release his tax returns during his campaign. Now California lawmakers want to force him to decide between sharing his returns or giving up his spot on the state’s 2020 presidential ballot.
California would become the first state in the country to require presidential candidates to release their tax returns if a bill passed by the Legislature last week is signed by Gov. Jerry Brown.
But legal scholars say there are significant questions whether the legislation passes constitutional muster. And it’s not clear whether Brown, who didn’t release his own tax returns in his most recent two gubernatorial races, backs the bill.
“You can bet that if Gov. Brown signs it, the second the ink is dry someone will sue,” said Jessica Levinson, a professor at Loyola Law School who says there are strong constitutional arguments on both sides of the issue.
State Republican Party officials acknowledge that Trump doesn’t have a chance of winning deep blue California, but GOP officials are worried about the possibility of a 2020 ballot without Trump because it would hugely depress GOP turnout.
Trump said during the 2016 presidential campaign that he couldn’t share his returns because of an Internal Revenue Service audit, becoming the first major-party candidate since President Gerald Ford to decline to do so. More recently, he’s argued that Americans “don’t care at all” about his taxes.
Polling, however, has repeatedly shown that a large majority of Americans want Trump to release his returns. The president’s critics say the documents would shed light on his business dealings and potential conflicts of interest.
Senate Bill 149 would require anyone who wants to be on California’s presidential ballot to file five years of their tax returns with the Secretary of State’s Office, which would post redacted versions online.
“This time-honored tradition helps make our democracy stronger so voters have the full information before walking into the voting booth,” said Sen. Mike McGuire, a North Bay Democrat who authored the bill.
But it’s unclear whether California has the constitutional authority to impose such a requirement.
The legal debate centers on a 1995 U.S. Supreme Court case in which justices ruled that states are allowed to set procedural requirements for candidates to get on their ballots but can’t invent new qualifications for federal office that aren’t outlined in the U.S. Constitution.
The bill’s supporters point out that candidates are already required to fill out a financial disclosure form. They argue that releasing tax returns should be a similar requirement.
“It doesn’t restrict the ballot based on any qualifications,” said Richard Painter, a University of Minnesota law professor who was the chief ethics officer in George W. Bush’s White House. “It’s not very onerous because you’ve already prepared your tax returns.”
States have a legitimate interest in requiring the returns because presidents have so much power over tax policy, he said. California’s Legislative Analyst’s Office also found that the bill “appears to be constitutional” under precedents set by the Ninth Circuit Court of Appeals.
But opponents say demanding tax returns amounts to a new qualification and is unconstitutional. They also argue the bill could lead to a slippery slope, with other states potentially requiring presidential candidates to release their medical records or jump through other hoops in order to get on their own ballots.
“If they can do this, we could theoretically force presidential candidate to do all kinds of things,” said Richard Winger, a political analyst who is editor of San Francisco-based Ballot Access News.
Numerous other states are considering legislation requiring presidential candidates to release their returns. New Jersey passed a similar bill earlier this year, but Gov. Chris Christie, a Trump ally, vetoed it.
Brown is playing his cards characteristically close to his chest.
“I want to read it. I want to look at the legality in the face of federal law,” he said on CNN this week when asked about the bill. He pointed out that he released his own tax returns during his first two runs for governor, in 1974 and 1978, but didn’t release them in 2010 or 2014 because his opponents didn’t release theirs.
The campaigns of all four Democratic candidates for governor — Lt. Gov Gavin Newsom, former Los Angeles mayor Antonio Villaraigosa, state Treasurer John Chiang and former state schools Superintendent Delaine Eastin — told the Bay Area News Group that they support the bill. That means that if Brown vetoes it, legislators could get another chance to see the bill become law in 2019.
The bill passed the Legislature with a two-thirds majority in both houses — including votes from two Republican members of the Assembly, Catharine Baker of San Ramon and Brian Maienschein of San Diego — but it’s rare for legislators to override a governor’s veto in California.
If Brown does sign the bill into law and Trump still declines to release his tax returns, California’s 2020 ballot could go before voters without a Republican nominee. That would potentially be catastrophic for Republican turnout in state legislative and congressional races.
Jim Brulte, chairman of the state Republican Party, said he doesn’t think the bill will get that far.
“This is unnecessary and it’s just part of the Democratic focus on Donald Trump,” Brulte said. “Trying to disadvantage Republicans in California from having a choice is really beneath the dignity of most members of the Legislature.”
He said the party would be looking at “all our options” if Brown signs the bill, including legal action.
The White House did not respond to a request for comment on the bill.
There is a question about who would have legal standing to sue over the law. Winger suggested it could be a minor third-party candidate, while Levinson said she thought it could be anyone considering running for president.
Releasing tax returns is also an issue in next year’s governor’s race. Newsom has released six years of his returns, and the other three Democrats have promised to release theirs as well. “It’s a simple choice for candidates — they can emulate Newsom’s transparency or Trump’s evasion and obfuscation,” said Newsom spokesman Dan Newman.
Chiang’s campaign said they will release his “very soon,” and Villaraigosa’s campaign said it will release his “in the coming months.”
The two Republican candidates, businessman John Cox and Assemblyman Travis Allen, have not said whether they will release their returns. The Bay Area News Group reported last month that Allen was years late in paying $42,000 in federal income tax and faced an IRS lien.
Allen voted against the bill, and Cox’s campaign said he opposed it, calling it a ploy by Democrats to “raise money from their liberal base.”
