Requiring Presidential Candidates to Release Their Tax Returns

[ema-Aug. 2, 2019] In 2016, then candidate Donald Trump broke with custom and refused to release his tax returns.  Trump cited an ongoing audit, and he took considerable heat.  Most 2020 Democratic hopefuls have voluntarily released their tax returns (+), but President Trump remains obdurate.  [This despite efforts of Democrats in Congress to force release of his returns as part of their oversight role].  Democratic state legislators have sought to force Trump's hand.  The National Conference of State Legislatures reported that, "As of April 1, [2019] legislators in 25 states had introduced bills to require prospective presidential candidates to disclose recent tax returns as a condition of being placed on the ballot."  On July 30 California Gov. Gavin Newsom signed the "Presidential Tax Transparency and Accountability Act" into law.  However, such legislation could well be unconstitutional, and the matter will be decided by the courts.  
Office of Governor Gavin Newsom

Governor Gavin Newsom Signs SB 27: Tax Transparency Bill

SACRAMENTO – Governor Gavin Newsom signed today legislation requiring candidates for U.S. President and California Governor to disclose their income tax returns in order to appear on California’s primary ballot.

SB 27, by Senator Mike McGuire (D-Healdsburg) and Senator Scott Wiener (D-San Francisco), requires a candidate for U.S. President or California Governor to file copies of every income tax return filed with the Internal Revenue Service in the five most recent taxable years with the Secretary of State, at least 98 days prior to the corresponding primary election.

In signing the legislation, the Governor issued the following signing statement:

To the Members of the California State Senate:

Today, I am signing SB 27, the Presidential Tax Transparency and Accountability Act. I agree with the Legislature that “the State of California has a strong interest in ensuring that its voters make informed, educated choices in the voting booth.” As one of the largest economies in the world and home to one in nine Americans eligible to vote, California has a special responsibility to require this information of presidential and gubernatorial candidates.

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.

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.

In October of 2018, the Brennan Center’s National Task Force on Rule of Law and Democracy, a bipartisan group of former public servants and policy experts, recommended that Congress standardize and codify the longstanding practice of tax return disclosure by sitting presidents, vice presidents, and candidates for those offices to assist voters and deter corruption. I agree. This law should be a national standard 

Accordingly, I am signing Senate Bill 27. 


Gavin Newsom

Governor Newsom has made releasing tax returns a priority in his campaigns for San Francisco Mayor, Lieutenant Governor and Governor. The Sacramento Bee wrotein 2017 Newsom “set a standard of transparency” for releasing 6 years of tax returns in his campaign for Governor, and after being elected Governor, Newsom announced he will become the first Governor in state history to release his tax returns on a yearly basis.

Nationally recognized leaders in constitutional law offered their support for the law and its constitutionality:

Erwin Chemerinsky, Dean, University of California, Berkeley School of Law:

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. 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.

Theodore J. Boutrous, Jr., Partner, Gibson, Dunn & Crutcher LLP:

SB 27, which would require a presidential candidate to publicly release redacted versions of her tax returns before her name can be placed on a California ballot for President of the United States, is constitutional. As the Ninth Circuit recently explained, such laws are constitutional if they are “generally applicable, even-handed, [and] politically neutral,” and the State has an important justification for enacting the law. De La Fuente v. Padilla, No. 17-56668, 2019 WL 3242193, at *3 (9th Cir. July 19, 2019).  

Here, California’s bill meets all of these requirements. It will apply to any candidate for President, whether Republican, Democrat, or Independent. And as the State Legislature concluded, the State has important interests “in ensuring that its voters make informed, educated choices in the voting booth,” among many other important reasons. 

Every President from Richard Nixon to Barack Obama voluntarily chose to release his tax returns when running for office.  Releasing tax information should be a prerequisite for appearing on the ballot for the highest office in the land, and the Constitution does not forbid California from making it one.

David Boies, Chairman, Boies Schiller Flexner LLP:

California SB-27, which would enact the Presidential Tax Transparency and Accountability Act, is constitutional. That bill would require a candidate for President or Governor to file the candidate’s five most recent years of income tax returns with the California Secretary of State in order to have their names placed on California’s primary election ballot. Redacted versions of those returns would be made available to the public. 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. 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.


August 1, 2019

GOP Presidential Candidate De La Fuente Challenges Constitutionality of California Law Requiring Trump's Tax Returns

Files Federal Lawsuit in Southern District of California

SAN DIEGO, Aug. 1, 2019 /PRNewswire/ -- Roque "Rocky" De La Fuente, a California native and candidate for the 2020 Republican Party nomination for President of the United States, has filed a federal lawsuit in the United States District Court in the Southern District of California challenging California Senate Bill 27, or the so called "Presidential Tax Transparency and Accountability Act" signed into law on July 30 by Governor Gavin Newsom.

De La Fuente, who is challenging President Trump for the 2020 Republican Presidential nomination, said, "all Republicans must stand united in demanding that state officials be held to account when they threaten fundamental rights guaranteed under the U.S. Constitution."

California's law would require presidential candidates to file their 5 most recent tax returns in order to appear on California's presidential primary election ballot. In his pleadings, De La Fuente argues that this violates the Qualifications Clause of Article II, section 1, clause 5 of the United States Constitution and federal statutory law which guarantees that federal income tax returns remain confidential.  He also argues that this violates the First Amendment guarantee that state governments cannot force speech, even of political candidates.

De La Fuente, who prevailed in lawsuits against other states relating to unconstitutional ballot access laws and regulations during his independent bid for President in 2016 says, "If voters want a candidate to release their tax returns, voters are free to withhold their vote from candidates who do not. Personally, as a candidate seeking the Republican nomination for President, I will be releasing my last 5 years of tax returns voluntarily. However, California's requirement to make federal income tax returns public as a condition of ballot access is unconstitutional. It is not a valid 'ballot access' restriction, because it has nothing whatsoever to do with the proper regulation of the ballot, such as preventing frivolous candidates from appearing, or to ensure that elections are conducted in an orderly manner."

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