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More than a dozen state legislatures are considering bills requiring presidential candidates to release their tax returns before a general election—motivated in part by President Donald Trump’s failure to do so leading up to the November 2016 elections.
Illinois joined that list of states with S.B. 982, introduced Feb. 7 by Sen. Daniel Biss (D). Biss said S.B. 982 would require general election presidential and vice-presidential candidates to disclose at least five years of federal returns five days before certification of the general election ballot.
Biss said voters are entitled to certain basic information about the financial interests of presidential candidates when making their ballot box decisions. He added that the nation as a whole would be served by a full understanding of any potential conflicts that could compromise the Executive Office of the President.
“Basic transparency is an important principal of American government and I think there is tremendous value in adhering to this principle,” Biss told Bloomberg BNA. “Additionally, we have a president right now who apparently engaged in a variety of conflicts of interest but we can’t tell how many because we have incredibly hazy information about his assets and his financial situation, and that seems to be very dangerous.”
S.B. 982 is the third bill of its kind to emerge in Illinois in recent weeks. S.B. 762 requires presidential candidates to submit five years of federal returns to the State Board of Elections by Aug. 15 of each presidential election year. H.B. 780 requires presidential and vice-presidential candidates to submit five years of returns 50 days before a general election.
An analysis by the National Conference of State Legislatures found similar bills in several states. One or more tax return bills have been introduced in Arizona, California, Connecticut, Hawaii, Iowa, Maryland, Minnesota, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island and Virginia. Lawmakers in Maine and the District of Columbia have also announced plans to pursue tax disclosure legislation.
With the exception of Arizona, Iowa and Pennsylvania, all of the states considering these bills supported Hillary Clinton during the 2016 presidential election.
Joseph Henchman, vice president of legal and state projects at the Tax Foundation, said these proposals could run into trouble as a matter of law and public policy if they interfere with open balloting across the states during a national election.
“While I think the President should release his tax returns, I don’t support tying it to ballot access where it would just deprive people of a choice,” Henchman told Bloomberg BNA. “I’m also concerned about eroding the default rule that tax return information is private.”
Vikram David Amar, dean of the University of Illinois College of Law, said such bills would likely be challenged and states would have to take steps to defend their actions. Amar said he sees nothing facially unconstitutional in these types of state requirements, but the laws raise policy concerns that some judges would prefer to avoid.
More specifically, Amar said it is conceivable that some judges would see these laws as ballot access obstacles, undermining the goals of an open national election. Amar said some judges would be reluctant to support statutory variations between states. Other judges would be reluctant to create precedents validating additional types of ballot access regulations by the states.
“The more variation you have, the more problematic a presidential election might look,” Amar told Bloomberg BNA. “Courts would have to grapple with that. It’s a policy concern that might ripen into a constitutional challenge. It’s a classic slippery slope problem. Right now you might be talking about tax return disclosure, but if courts uphold it, the question is: what comes next?”
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