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

[Lowenstein, Daniel]

            I have not been following this discussion (the joys of retirement!), but this morning I chanced to read Rick P.’s message below.  I am writing simply to suggest that I believe there is an additional First Amendment problem with the new California law, in addition to the one under the Anderson line of cases.  The disclosure requirement is an interference with a political party’s right to nominate the candidate of its choice and to set the procedures for determining its choice.  In other words, there is probably a serious potential challenge under the Tashjian line.

            In the term limits case, U.S. Term Limits v. Thornton, I submitted an amicus brief in behalf of then-Congressman Howard Berman, in which I relied on the Tashjian line as a ground for striking down the term limit even if the Court decided (which it did not) that the limit was not a qualification because (in Arkansas and in some though not all of the other states that had adopted congressional term limits) a candidate could still be elected as a write-in.  Even under that assumption, the fact remained that the party was precluded from nominating the candidate it preferred.  Under the California law, the party is not precluded from nominating the candidate of its choice.  Trump (or any similarly situated candidate) could be nominated even without the opportunity to win delegates from California.  But the law interferes with the party’s ability to control the process by which the candidate is selected and does so to a greater degree than in Tashjian itself.  I thought the argument I made in Thornton was very strong, indeed, probably unanswerable.  The California case is not identical to the term limits case, and I have not attempted to think through whether there are distinctions that could be determinative.  But it does seem to me that anyone working on either side of the controversy raised by the California law or as a scholar trying to understand it ought to give serious consideration to the Tashjian line.

                                       Best,

                                       Daniel Lowenstein
                                       Director, UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
                                       Emeritus Professor of Law, UCLA
                                       (310) 825-5148 (o)
                                       (818) 632-7955 (m)

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pildes, Rick
Sent: Wednesday, July 31, 2019 8:06 AM
To: Election Law <law-election at uci.edu>
Subject: Re: [EL] CA's law requiring presidential candidates to disclose tax returns

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



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