California is the first state in the country to make the disclosure of tax returns a requirement for a March primary ballot spot under a law signed July 30 by Gov. Gavin Newsom. Though Senate Bill 27, the “Presidential Tax Transparency and Accountability Act,” clearly was inspired by Donald Trump’s persistent refusal since 2016 to disclose his returns, as has been a custom for decades, the law applies to Democratic and other party candidates, as well.
SB 27, authored by Sen. Mike McGuire (D-Healdsburg) and out Sen. Scott Wiener (D-San Francisco), requires that all candidates running for president or governor submit the last five years of their personal income tax returns to California’s Secretary of State. The information would then be published online for the public to see, with contact information, Social Security numbers and medical information redacted.
“These are extraordinary times and states have a legal and moral duty to do everything in their power to ensure leaders seeking the highest offices meet minimal standards, and to restore public confidence. The disclosure required by this bill will shed light on conflicts of interest, self-dealing, or influence from domestic and foreign business interest,” Newsom wrote in his signing statement Tuesday. “The United States Constitution grants states the authority to determine how their electors are chosen, and California is well within its constitutional right to include this requirement.”
Trump’s 2020 presidential reelection campaign spokesperson, Tim Murtaugh, calls the move “unconstitutional.”
“There are very good reasons why the very liberal Gov. Jerry Brown vetoed this bill two years ago— it’s unconstitutional and it opens up the possibility for states to load up more requirements on candidates in future elections. What’s next, five years of health records?” Murtaugh said.
In fact, as the Los Angeles Times points out, “neither then-Gov. Jerry Brown nor his GOP challengers would divulge details on their finances during the 2010 and 2014 campaigns.”
In 2017, Brown vetoed a similar measure, arguing that it is probably unconstitutional and sets a bad slippery-slope precedent. “Today we require tax returns, but what would be next?” Brown argued in his veto message. “Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?
The law does not apply to gubernatorial candidates until 2024 but the bill takes immediate effect for 2020 presidential candidates who must file their returns by late November to get a spot on California’s Super Tuesday primary ballot.
The law, therefore, will likely be challenged quickly as happened with Trump’s lawsuit filed in U.S. District Court for the Southern District of New York challenging a law signed earlier this month by Gov. Andrew Cuomo that requires the state to turn over Trump’s New York state tax returns to House committees investigating the president’s business and other dealings.
The Los Angeles Blade spoke with a lawyer, who requested anonymity, familiar with the New York filing. He said Newsom’s action would likely bring an immediate legal challenge the California law. “Because of the campaign process and the time requirements, I can see this challenge getting fast tracked through the Ninth Circuit and landing at SCOTUS by next Spring 2020,” he said.
That timing might keep Trump off the March Primary ballot—unless he mounts an exempted write-in campaign. But he could still get a spot on the November 2020 election ballot.
Trump’s reelection spokesperson seemed to flag the campaign’s argument—that states cannot add requirements to presidential candidates’ qualifications for running.
“The Constitution is clear on the qualifications for someone to serve as president and states cannot add additional requirements on their own,” Murtaugh said. “The bill also violates the 1st Amendment right of association since California can’t tell political parties which candidates their members can or cannot vote for in a primary election.”
Constitutional expert Erwin Chemerinsky, Dean of the University of California’s School of Law, disagrees. “SB 27, which requires that presidential candidates disclose tax returns, is constitutional. It does not keep any candidate from being on the ballot so long as he or she complies with a simple requirement that is meant to provide California voters crucial information,” Chemerinsky said in a statement. “This is the state acting to make sure that its voters have information that might be very important to them when they cast their ballots as to who they want to be President of the United States.”
David Boies, Chair of Boies Schiller Flexner LLP, famous Democratic litigator in Bush v Gore and the federal lawsuit against Prop 8 (with Ted Olson), also argued that point.
“The U.S. Constitution gives each state the authority to determine how that state’s electors are chosen, limited only by compliance with other constitutional provisions, such as equal protection. No other constitutional provision is implicated or violated by a state’s requirement that a Presidential candidate disclose tax returns,” Boies said in a statement. “Moreover, California, which permits electors to be chosen by popular vote, has an important interest in insuring that its voters are informed. I also would note that people are regularly required to produce their tax returns pursuant to state law for far less consequential matters than a Presidential election, such as civil litigation or obtaining a loan from a bank.”
Newsom has been challenging Trump since the then-Republican presidential candidate refused to release his returns because he claimed to be under IRS audit. “Folks think @realDonaldTrump is avoiding tax release because he pays a very low rate,” Newsom tweeted in May 2016. “I think its because his finances are a house of cards.”
The real house of cards, scarier than the Netflix version. – Karen Ocamb contributed to this story.