Every presidential candidate in modern United States history has released his or her tax returns in the general election.
The lone exception, of course, is Donald Trump, who is taking a break from his busy schedule of tweeting and watching cable news to do the one thing he is legitimately good at: saying whatever he thinks people want to hear, in front of large campaign crowds.
With the Mueller report about to drop on Thursday, Notre Dame still smoldering, and the White House attacking migrant children and their families, the 2020 election is far from the minds of most Americans, who don’t usually start paying attention to presidential campaigns until the final weeks. But several state legislatures are already preparing for November 3, 2020, by toying with a novel idea of how to force the Trump campaign to release his returns: Denying him from appearing on the ballot at all.
It’s an idea that was floated in 2016, the first time Trump lied about being legally prohibited from releasing his returns while under an IRS audit. (As University of Virginia School of Law professor George K. Yin wrote, “There’s no prohibition in the law that would bar his voluntary disclosure while an audit is pending.”) No states followed through with their threat, but the idea hardly faded into the background: fully 18 states have explored the possibility of denying access to the ballot for any candidate who doesn’t release their tax returns.
Illinois is one of those states, where last week the state senate voted overwhelmingly for SB 145, a bill to compel any presidential candidate to publicly release at least the most recent five years of their tax returns or else be omitted from the ballot. It’s now languishing in the Democratic-controlled House, and Gov. J.B. Pritzker, a Democrat, has yet to signal his intention to sign or veto the legislation.
If he does veto it, he wouldn’t be the first governor to do so. Former New Jersey Gov. Chris Christie (R) axed a bill that made it to his desk in 2017. California tried a similar legislative maneuver that same year, but Democratic Gov. Jerry Brown condemned the measure, warning that its implementation could be a slippery slope.
“Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards?” posited Brown when he issued his veto. “And will these requirements vary depending on which political party is in power?”
“I have a predisposition towards slippery slope arguments,” said James Gardner, a distinguished professor and election law expert at the University of Buffalo School of Law. “They’re usually not based on reasoned analysis. Just because you take one step doesn’t mean you have to take ten.”
“There’s a relevancy constraint here,” he added, in response to those who argue legislatures could start imposing all kinds of arbitrary hindrances to accessing the ballot. And with regard to the current president’s financial holdings, “it is quite relevant.”
Donald Trump’s vast business empire has been the subject of much consternation and scrutiny by lawmakers and legal experts, who continue to decry his profiteering off of the office of the president. He refused to divest his holdings in his private companies, and has raked in millions of dollars from foreign governments, private companies, and anyone else hoping to curry favor with the administration by booking stays at his pricey Washington, D.C. hotel. And the public is still in the dark on how much of his family’s financial fortune is tied to foreign investments, which could well influence federal policy.
Gardner told ThinkProgress he would support such a bill in New York (which is already one state that has considered such a measure). But the merits of these bills aside, there’s another, more pressing question: would these laws be legal?
“The answer is really unclear,” said Gardner. On one hand, the constitution makes it clear there are only three qualifications a person must meet in order to serve as president — be at least 35 years old, be a natural born citizen, and be a resident for at least 14 years.
“States do not have the authority to add qualifications for office,” explained Gardner. “But they do clearly have the authority to impose qualifications for ballot access.” A person who is qualified for office cannot simply demand they appear on the ballot, they must show a degree of viability as determined by each state. Most require a certain number of signatures be collected by a candidate who wants access to the ballot, for instance. It’s this conflict — of ballot access versus presidential qualification — where the question of legality becomes uncertain.
“Whether this is a ballot access question or a qualification question is anybody’s guess,” said Gardner.
Ultimately, it may not matter. Democrats, who now control the House, are pushing hard to compel the federal government to turn over Trump’s tax returns. The White House and their cabinet officials have forcefully resisted those efforts so far, but lawmakers don’t appear ready to give up the fight. And with the 2020 election getting closer by the day, calls for their disclosure will only intensify on the campaign trail.