Common Cause 2017 Testimony on Restoring Financial Transparency in Presidential Elections

September 6, 2017

Written by Pam Wilmot

Testimony in Support of S.365
Financial Transparency in Presidential Elections
Pam Wilmot, Executive Director, Common Cause Massachusetts
Joint Committee on Election Laws
September 6, 2017

For the last forty years, virtually every major candidate for President of the United States has released his or her federal tax returns to the public. While not obligated by law, this practice has become an essential part of the electoral process, as learning the sources of a candidate’s income can reveal potential conflicts of interest and shed light on policy priorities. Granting the public access to this information encourages accountability from all presidential candidates, regardless of their party. Given President Donald Trump’s refusal to conform to this precedent it now necessary to enshrine this custom into law.

S.365 would do that. It would ensure increased transparency in future presidential elections and would help voters to make a fully-informed decision come Election Day by requiring Presidential candidates to release their tax returns to appear on the Massachusetts ballot. It would require releasing tax returns for “the three most recent available years,” a practice that most Presidential candidates followed if not exceeded.

This bill is a Constitutional exercise of Massachusetts’s power to select its presidential electors. The U.S. Supreme Court has upheld other states’ laws regulating ballot access, provided they do not create qualifications for office beyond those required by the Constitution. In Storer v. Brown, the Court reviewed laws denying ballot access to independent candidates who had voted in the most recent primary, had recently been a registered member of a qualified political party, or who had failed to file papers with a number of signatures equivalent to 5% of the vote of the last election. It concluded these were ballot access regulations, not unconstitutional qualifications.

Entirely foreclosing ballot access to a class of candidates, as in U.S. Term Limits, Inc. v. Thornton, is a different matter. There the Supreme Court struck down a law that had barred all candidates who had already served three terms in the House or two in the Senate. The Court found that it had been enacted with the sole purpose of creating an extra-constitutional qualification, not to protect the integrity and regularity of the election process. Similarly, the Court held in Cook v. Gralike that a state constitutional amendment could not label candidates on the ballot who had failed to support term limits. This was an attempt to dictate outcomes, disfavoring candidates based on policy issues.

A requirement that presidential candidates disclose their tax returns neither disqualifies a class of candidates nor disfavors them on policy grounds. The law disqualifies no one: complying with the requirement is entirely within each candidate’s power. It applies uniformly to candidates regardless of their political positions.

Previously Supreme Court cases have only dealt with Congressional elections, which are governed by Article I of the Constitution. It permits states to prescribe the “times, places and manner of holding elections.” Presidential elections are governed by Article II, which more broadly grants states the power to choose presidential electors “in such manner as the Legislature thereof may direct.” This more expansive language strongly suggests more expansive authority. Requiring candidates to make a disclosure that serves the public interest is an entirely permissible method of choosing presidential electors.

The right of every eligible citizen to vote is paramount, but equally important is the idea that voters should have access to all information necessary to make an informed, educated decision. With S.365, Massachusetts has an opportunity to provide voters statewide with such information. S.365 will also hold presidential candidates accountable and fortify the transparency of our electoral process.

Bills similar to S.365 have been introduced in at least twenty-five other states around the country, with both Democratic and Republican sponsors. Transparency and accountability are not partisan issues. Requiring disclosure of tax returns will benefit both candidates and voters, encouraging integrity in elections and better-informed citizens. Common Cause Massachusetts therefore encourages the committee to give this bill a favorable report.

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