[EL] CA's law requiring presidential candidates to disclose tax returns

[Pildes, Rick]

While I think the major constitutional issue confronting CA’s tax-disclosure requirement for presidential primaries will be based on the First Amendment, I noticed that Rick Hasen has suggested the requirement might violate Art. II of the Constitution, on the theory that it imposes an additional “qualification” presidential candidates must meet beyond those specified in Art. II.

If courts do strike this requirement down, I want to flag one thing that’s at stake in whether they do so on First Amendment or Art. II grounds.  Let’s suppose Congress, rather than a single state, were to impose a general requirement that all presidential primary candidates had to disclose their taxes in order to be listed on primary ballots.  If the CA requirement is struck down as an effort to impose an additional “qualification” on who can be President, then it is just as unconstitutional for Congress to impose such a “qualification” as it is for any one state.

In contrast, if the courts strike down CA’s law based on the First Amendment, as reflected in the analysis I quoted earlier from Anderson v. Celebrezze, that could easily leave open the possibility that a congressional-imposed requirement would still be upheld.  Anderson is based heavily on the distinct problems created when individual states try to control what is essentially a national election process.  Anderson  can be thought of as a dormant commerce clause doctrine for national elections.  In various contexts, the Court has recognized limits on the power of individual states to interfere with national election processes (and has viewed presidential primaries as such a process).  Individual states face limits in trying to interfere with what is essentially a national market.  But Congress might have power to impose a national rule (to be sure, there would still be plenty of constitutional questions about even Congress doing so).

Also, I am skeptical about whether CA’s law should or would be treated as imposing a “qualification” on presidential candidates.  In the term-limits case, U.S. Term Limits v. Thornton, on which this “qualification” argument is mainly based, the law there barred candidates from being on the ballot if they had already served three terms in the House or two in the Senate.  One can readily see why the Court would view that as imposing a “qualification” for office:  you are not qualified if you have served “too long.”  But states impose all sorts of regulations on access to the ballot, and not every regulation is tantamount to a “qualification” for office.  Otherwise, all these regulations on ballot access would be constitutional.  I tend to think courts would view a requirement for disclosure of tax returns as a regulation on ballot access, not an additional “qualification” on who is eligible to be President.

But in any event, the larger point still holds:  there is no doubt the CA law presents serious constitutional issues.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Sq. So.
NYC, NY 10012
212 998-6377

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190731/4fec8042/attachment.html>