Should U.S. Presidential Candidates Be Required to Make Their Tax Returns Public?

About the Author: Greg Warren is a first year evening law student at American University- Washington College of Law. Greg graduated from George Mason University and hopes to work in Government Affairs on Tax Policy Issues after graduating law school.

The views expressed in this blog are solely those of the author and do not necessarily reflect the opinions of their employer.

 

Since the 2016 election campaign season, President Donald Trump has been under fire for failing to publicly disclose his federal tax returns for the entire country to assess in determining his qualifications to run for office.[1]  While there is no current law requiring a candidate to make these records public, President Trump’s refusal to release his returns breaks a custom that every President had followed since Richard Nixon.[2]  In turn, considerable debate has ensued, both at the state and federal levels, into whether President Trump, and presidential candidates in general, should be required by law to release these private documents prior to running for office.[3]

Supporters of this idea argue that a tax return disclosure requirement would heighten transparency in our elections by granting voters with an additional item to consider in determining whom to support.[4] Conversely, opponents believe this requirement would be an infringement on the rights of private citizens, deterring potentially qualified candidates from considering public office out of an apprehension of having more of their life exposed to the public than is necessary.[5]  Moreover, critics argue that these figures would be used more by opposing parties for political attacks than as supplemental material for the benefit of the electorate.[6]

Several state legislatures have considered legislation in recent years that would compel presidential candidates to release federal tax returns as an eligibility requirement to have their name listed on the state’s primary and general election ballots.[7]  California is one example where this measure passed through the state legislature and was signed into law.[8]  However, the statute was immediately challenged and later found to be unconstitutional in a unanimous decision by the California Supreme Court.[9]  In the case’s majority opinion, authored by Chief Justice Tani Cantil-Sakauye, the court concluded that it should be up to the voters to determine whether undisclosed information such as a candidate’s tax returns “will have consequences at the ballot box.”[10]

At the federal level, the U.S. House of Representatives in early 2019 passed H.R. 1, a sweeping election reform bill that, among many provisions, would require presidential and vice-presidential candidates to disclose their tax returns from the last ten years to the Federal Election Commission (FEC).[11]  The legislation, which passed on a straight partisan vote in the House, was seen as a powerful messaging bill for Democrats to showcase their commitment to government transparency.[12]  While H.R. 1 was dead on arrival in the Republican-controlled Senate, H.R. 1 was a noteworthy stride in this pursuit and will be significant in observing whether the issue remains a priority for Democrats even after President Trump has left office.

It is also relevant to note that since President Trump’s win in the 2016 election, there has been a relentless effort by Democratic Members of Congress to obtain his returns through Section 6103 of the Internal Revenue Code, which outlines ways in which certain Congressional leaders can acquire tax records of private citizens from the I.R.S.[13]  Although this is an important chapter in the President Trump tax return saga, the endeavor has been entirely political in nature and is not directly focused on the broader argument of transparency during elections.

While it is unquestionable that participants of a representative democracy ought to have a sufficient level of background on a nominee whom they are electing to represent them, a legislature should not determine the specific information voters must have to properly consider a particular candidate.  The American people are capable of gauging what they need to know to feel confident in backing a particular candidate, and if that candidate is unwilling to disclose certain information that they demand, the voters have the ultimate authority to fight back: the power to vote for somebody else.

 

[1] John Fund, Trump’s Refusal to Release Tax Returns Is a Ticking Time Bomb for the GOP, Nat’l. Rev. (May 11, 2016, 3:57 PM), https://www.nationalreview.com/2016/05/donald-trumps-tax-returns-delegates-should-abstain-if-he-wont-release/.

[2] Zoe Thomas, What’s in Donald Trump’s tax returns?, BBC (June 5, 2016), https://www.bbc.com/news/election-us-2016-36382410.

[3] Tom James, Presidential tax return requirement passes Washington Senate, Associated Press (Mar. 13, 2019), https://apnews.com/article/1d56b875df7d4b1687c1eb989c6eeb1f.

[4] Jennifer Rubin, Time for candidates to disclose their tax returns, Wash. Post (Mar. 22, 2019, 9:00 AM), https://www.washingtonpost.com/opinions/2019/03/22/time-candidates-disclose-their-tax-returns/.

[5] Hans. A. von Spakovsky, Make no mistake, disclosing Trump’s tax returns (and anyone else’s) is a felony, Fox News, https://www.foxnews.com/opinion/make-no-mistake-disclosing-trumps-tax-returns-and-anyone-elses-is-a-felony (Apr. 5, 2017).

[6] Amandeep S. Grewal, The President’s Tax Returns, 27 Geo. Mason L. Rev. 439, 480 (2020).

[7] Kayla Epstein, Trump could be left off some states’ ballots in 2020 if these bills become law, Wash. Post (Mar. 20, 2019, 10:42 AM), https://www.washingtonpost.com/politics/2019/03/20/trump-could-be-left-off-some-states-ballots-if-these-bills-become-law/.

[8] Governor Gavin Newsom Signs SB 27: Tax Transparency Bill, Office of Governor Gavin Newsom (Jul. 30, 2019), https://www.gov.ca.gov/2019/07/30/governor-gavin-newsom-signs-sb-27-tax-transparency-bill/#:~:text=SACRAMENTO%20%E2%80%93%20Governor%20Gavin%20Newsom%20signed,appear%20on%20California’s%20primary%20ballot.&text=Today%2C%20I%20am%20signing%20SB,Tax%20Transparency%20and%20Accountability%20Act.

[9] Patterson v. Padilla, 451 P.3d 1171, 1192 (Cal. 2019).

[10] Id. at *1175.

[11] For the People Act of 2019, H.R. 1, 116th Cong. § 10001(b)(1)(A) (2019).

[12] 165 Cong. Rec. H2598 (daily ed. March 8, 2019) (Roll No. 118).

[13] 26 U.S.C. § 6103(f).

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