Diary

Trump's Taxes, Transparency and the Law

On Saturday April 15th- traditional tax day- protesters took to the streets to demand that Donald Trump release his tax returns.  As everyone is aware, during the primaries this became an issue which Trump deflected by saying he would release the returns when an audit was completed.  The proffered reasons for Trump not to release his returns runs the gamut from covering up dealings with Russians to involvement with organized crime and other such conspiracies to his lack of charitable contributions.

This writer believes the reasons may be more Trumpian: the man is not anywhere near his claimed wealth and to reveal that fact would deflate an over-inflated ego.  He claims that his FEC filings are more detailed than his tax returns given the number of pages and all that.  The only problem with that is the government does not assess one’s wealth based on an FEC filing.

First, the facts.  A presidential candidate is not required by law to release their tax returns.  This is a tradition dating back to Richard Nixon.  Trump is the non-traditional candidate and not releasing his returns is certainly non-traditional, but not illegal.  This is not a defense of his decisioN; it is simply a statement of fact regarding the law.  Every presidential candidate has voluntarily released some version of their tax returns since Nixon.

Given the state of the law in this area, there is a push by some members of Congress to make it the law that at least presidential candidates release their returns to the public at some point.  Some are suggesting that this be written into any tax reform legislation.  Supposing some tax reform law passes and supposing it included this measure (although it seems it would have a better home in election reform legislation), it could not force Trump to release his returns since it would be an ex post facto law (something prohibited by the Constitution), nor would it likely affect a run in 2020 by Trump.  The reason is that he is now compensated as President and allegedly receives no income from his business.

However, starting with perhaps the 2024 election one supposes that such a law can be enacted at the federal level in some manner.  Democratic activists are now taking another strategy realizing it would never pass in a Republican-controlled Congress- using state level means to have candidates release their tax returns.  The means by which to do this is through ballot access laws at the state level.  California has one such proposal.  If a candidate fails to release, for example, five years of tax returns they could not appear on the ballot.  Maryland, Maine, Massachusetts and New York have similar legislation introduced.  New Jersey actually passed such a law and it sits on Christie’s desk as I write this.

To be sure, states have leeway regarding ballot access.  Most of these laws are designed to screen out frivolous candidates and make the system more orderly.  That is, not just any Tom, Dick and Harry can get on the ballot.  These laws generally specify a filing fee, filing deadlines and a requisite number of signatures.  It is the reason why third party candidates may be on the ballot in Florida, but not Illinois.  Obviously, major parties have an advantage.

The ability of states to pass ballot access laws is undisputed and has been upheld by the Supreme Court.  What has not been approved by the Supreme Court is using these laws as a political weapon and one cannot see such efforts as anything but a political weapon.  For example, using the very same rationale used by Democrats today- voter information- Louisiana required that the candidate’s race be noted on the ballot and in the filings.  Missouri previously passed a law requiring candidates to take a term limit pledge.  If they refused, that fact was published on the ballot.  Again, informing the voters was the reason offered.  Both examples were struck down by the courts.

There are further problems with such laws that require candidates release their tax returns.  Obviously, privacy rights enter the picture.  The New Jersey law would require that the candidate basically turn over to state election officials the return as presented to the IRS.  This includes one’s social security number and home address.  Secondly, it would create a hodgepodge of state laws- one might require two years of returns, another five years.  What about the returns of a spouse if they file separate returns?  What about the returns of a business, such as the case with Trump or any other business owner for that matter who may want to run for office?  What about third party candidates?  How many levels of candidates- just federal offices?

In the interest of faux transparency, they would effectively be screening out potentially qualified candidates who simply prefer their privacy or who have nothing to hide, but would have certain items on the return scrutinized and taken out of context.  One can hear it now: they made $1 million but only donated $500 to charity (as if charitable donations are a requirement).

Obviously, if done at the state level, voters in different states would have different choices based on the ballot access laws specific to each state.  This could open up votes for third party candidates that did comply, but likely be unconstitutional.  And when casting a vote for a candidate, technically one is designating an elector.

One understands the frustration of those on both sides of the political divide to have candidates release their tax returns.  But, prior to Nixon this country did not feel the need to publicly disclose the wealth of candidates for any office.  This is obviously a targeted law against the one individual who refused to honor tradition- not break the law- which is, at that, only a 40-year tradition.

Instead, if this is such a big issue then perhaps the better solution is to leave the ballot access laws alone and use the actual ballot box.  For some, Trump’s refusal to release his returns may be part of their reasoning for not voting for him.  To others, it may be the sole reason.  If the courts were to rule that states have broad leeway in determining access to the ballot, then other requirements may be instituted.

The United States Constitution is clear on the qualifications to be President:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The Left regularly rails against ballot access laws as being too restrictive on third party candidates and argue that they be liberalized.  Out of spite and searching for another reason for the loss of Queen Hillary, they stand to go back on decades of beliefs regarding ballot access.  The best solution is to leave well enough alone in this area and make your case in the public forum and at the ballot box on Election Day.