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Legal requirements to release the tax returns of candidates for public office

In the aftermath of revelations about the president’s financial scandals, a number of states are moving forward with bills that would require all candidates for public office to release tax returns in order to be listed on the ballot. This blog post does not attempt to list the states, the bills or their status. We do not know how many of these laws will be in effect for the 2020 election but commentators say that at least one of these states will pass the tax return disclosure law. There are currently no proposals to prevent those who elect to hide their finances from arranging a ‘write in’ ballot campaign. At this point, it seems likely that the president will be a write-in candidate in one or more states in 2020.

Separately, New York legislators introduced a bill that would authorize the state’s tax commissioner to release state tax returns to Congress upon request. The Senate approved the bill this week. The Assembly bill is posted here. The legislation, if passed, would enable the release of Trump’s state returns, since he is a New York resident and the state is home to his family business, the Trump Organization. This would effectively bypass the Internal Revenue Service that is a federal agency run by the U.S. Treasury and therefore under the command of the president. It is not clear whether this method of release would satisfy the requirement for release under proposed states laws described above. In other words, New York could release Trump syndicate tax returns to Congress and yet the president might still be excluded from the Illinois state ballot. It will be interesting to see how the implementation of these laws develop.

Meanwhile, at the federal level House Ways and Means Committee Chairman Rep. Richard Neal scolded the president’s political appointee who runs the Treasury Department this week: “It is not the proper function of the IRS, Treasury, or Justice to question or second guess the motivations of the Committee or its reasonable determinations regarding its need for the requested tax returns and return information”. The Chairman affirms that the law is  unambiguous that the returns must be handed over. Treasury Secretary Steven Mnuchin does not disagree with that interpretation of the law but argues that the information will be used for the political purpose of exposing the president’s misconduct and called Congress’ demand date ‘arbitrary’.

Federal political appointees like the U.S. Attorney General have recently shown a partiality to deviate from consensus legal opinion to protect the president even if that means defying a Congressional subpoena.

Some Republicans believe that the U.S. Constitution protects a candidates right to financial privacy even if that means hiding criminal dealings and other violations of the Constitution itself. One Republican cites two U.S. Supreme Court cases that say the U.S. Constitution lays out ballot qualifications and states cannot make them more strict. Yet states have routinely set their own information disclosure requirements without interference from the federal government.

It seems clear that the requirements for release of tax returns will be handled by the states both as a matter of law and political practicality. Yet we may see a long legal course of action before the eventual outcome. This issue appears to be one more in the growing list of issues that pit the state governments against a minority of powerful Republicans in Washington DC who are intent on keeping that power.

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