(Update: On Oct. 15 the governor nixed legislation to require presidential hopefuls to release their tax returns to qualify for the California ballot. In his veto message for SB 149, Gov. Jerry Brown said he understood the “political attractiveness—even the merits—of getting President Trump’s tax returns.” But Brown questioned the bill’s constitutionality and warned of an ever-escalating list of conflicting politically charged presidential requirements from other states: “Five years of health records? A certified birth certificate? High school report cards?”)

 

There’s sometimes a fine line between good governance and trolling.

One of this year’s most controversial—if not quite as consequential—state bills is a proposal by Democratic Sen. Mike McGuire of Healdsburg that would require presidential candidates to release their tax returns before they can appear on a California ballot.

Proponents insist this is simply about providing voters with necessary information about any and all presidential candidates.

Did you have one in mind?

“President Trump is a strong example of the need for this legislation, but he’s not the only one,” McGuire told the Senate Judiciary Committee when he introduced the bill earlier this year. “I assure you we would both be up here today if Hillary Clinton would have won the presidency and she didn’t disclose her tax returns.”

Though a handful of Republicans voted for the bill, most remain unconvinced. And even some Trump skeptics worry about playing politics with who can access the ballot.

Every president since Jimmy Carter has released his tax returns while running for the country’s highest office, a post-Watergate acknowledgment that the American people might have an interest in knowing their president is not a crook. But President Donald Trump famously broke that tradition.

For many Americans, the break provided an unexpected civics lesson: that the ritual airing-out of each presidential candidate’s financial laundry isn’t mandated by the U.S. Constitution or statute, but by mere expectation.

“It turns out that this was just a voluntary agreement, not a law,” said Eddie Kurtz, executive director of the Courage Campaign, a progressive advocacy organization supporting the bill. “So there’s a very unique opportunity here to make it law.”

Incidentally, it’s also an opportunity for Democrats to stick it to an unpopular president.

This year, lawmakers in at least 26 states have introduced bills requiring presidential candidates to disclose their financial history in some form or another. Earlier this year, New Jersey lawmakers passed a similar requirement, only to have Republican governor and one-time Trump cabinet short-lister Chris Christie bat it down as a “transparent political stunt masquerading as a bill” and “clearly unconstitutional.”

Gov. Jerry Brown has until October 15 to decide whether to follow suit. And while the bill may not be “clearly unconstitutional,” as Christie wrote, it isn’t clearly constitutional either.

Our nation’s foundational document is pretty clear about the basic job requirements for president: a candidate must be a natural born citizen over the age of 35 who has lived in the United States for at least 14 years.

The Constitution also gives states a fair amount of discretion to choose how elections for all federal offices are done. Historically, the Supreme Court has squared this circle by drawing a sharp if not always clear distinction: states can set up “procedural regulations” about the time, place and manner of elections. Registration deadlines, filing fees, and signature gathering requirements are all OK.

But states cannot slap new requirements on would-be candidates.

That’s why in 1995 the Court swatted down an Arkansas law banning candidates who have served more than a few times in Congress from appearing on a congressional ballot. The Constitution says nothing about term limits for congressman, the court ruled, so neither can Arkansas.

A few years later, when Missouri tried to get around this ruling by simply listing next to their name on the ballot whether congressional candidates supports term limits, the court gave that a unanimous no.

Generally, the Supreme Court has given the side-eye to any use of ballot rules that appears to put a thumb on the scale for one electoral outcome or another. In the early 1960s, Louisiana passed a law requiring that a state ballot note each candidate’s race. The court’s ruling: definitely not OK.

So if California wants to require presidential candidates to disclose their taxes, is that a procedural requirement or a brand new qualification?

Expert opinion is split. While Sen. McGuire solicited and received a positive endorsement from Harvard constitutional scholar Laurence Tribe, the California Legislature’s own legal counsel, along with many constitutional law scholars, sided with Chris Christie.

This isn’t the first time that state lawmakers have tried to use their positions as gatekeepers to the ballot to needle their political adversaries.

In 2011, lawmakers in at least 14 states introduced so-called “birther” ballot access bills. None got as far as the one in Arizona, which required presidential candidates to show their birth certificate (or failing that, one of a series of corroborating documents include baptismal or circumcision records). GOP Gov. Jan Brewer vetoed that idea.

There are obvious contrasts between the assertion that former President Barack Obama wasn’t a citizen and the assertion that President Trump didn’t disclose his tax returns, in that only one happens to be true.

Plus, according to Eugene Mazo, a visiting associate professor of law at the University of Maryland, the Arizona bill was meant to prove that each candidate met the natural born citizenship qualification already enumerated in the Constitution. However misguided that effort, he said, that challenge rests on firmer constitutional ground than the California bill, which tacks on a whole new requirement for the job.

“Tax returns? That has nothing to do with what the Constitution says,” he said.

Still, in what could be yet another example of how the gentleman’s duel of American politics increasingly resembles a knife fight, John McCain, Obama, Ted Cruz and now Trump have all had their eligibility for the presidency called into question in either legislative chambers or court houses.

What all of these challenges have in common, Mazo recently wrote in the Fordham Law Review, is that they are ”mainly used to bring an issue before the public, to insinuate that the candidate did something wrong, and ultimately to gain an upper hand with voters.”

California Republicans agree.

Throughout the legislative session GOP Sen. Joel Anderson of El Cajon repeatedly tried to expand the bill’s show-your-tax-returns requirement to cover all statewide office holders, including his fellow legislators.

“If you don’t want to apply the rule to us then this looks more like grandstanding than good legislative process,” he told the Senate earlier this year. Gaining no traction on that score, he then engaged in a little grandstanding of his own, introducing an amendment requiring all presidential candidates who wish to appear on the ballot to publish their birth certificates.

“This is kind of a mockery of a bill,” he said, “so I thought you’d like a mockery of an amendment.

Though Democrats continued to insist that this was a high-minded transparency initiative worthy of bipartisan consideration, not everyone in their caucus was on message.

In a heated Assembly debate before passing the bill in the final hours of the legislative session, Assemblyman Marc Levine from San Rafael reminded fellow Democrats just how helpful the bill could be for their political fortunes in 2020.

It’s possible for presidential contenders to run without appearing on the ballot in all 50 states—third party candidates do it all the time. So if Trump chose to to write off California and pursue an Electoral College win without the Golden State rather than make his tax returns public “we could ostracize him and make a point about how he is so far outside the political norms that he can’t even qualify to be on this ballot,” Levine said.

Minutes later, Democratic Assemblyman Miguel Santiago called Trump a “Russian crony,” drawing boos and complaints from his Republican colleagues

David Snyder, executive director the First Amendment Coalition, an organization that pushes for more government transparency, would prefer that the bill apply to all statewide races, not just the one in which Trump may participate.

“What’s good for the goose is good for the gander,” he said. “This bill seems to be all goose.”

Even so the top contenders in the 2018 gubernatorial race don’t seem to need much encouragement. Among the Democrats, both Lt. Gov. Gavin Newsom and state Treasurer John Chiang have released their tax returns, with former Los Angeles Mayor Antonio Villaraigosa and former State Superintendent of Public Instruction Delaine Eastin promising to follow suit soon. Republicans John Cox, a businessman, and Assemblymember Travis Allen have yet to release their returns, though Cox vows to do so before next summer.

This all makes it more likely that the decades-long tradition of California governors releasing their tax documents will resume after a two-term interruption. Gov. Brown did not release his in either the 2010 or 2014 campaigns.

Even if Democrats are tweaking Trump, Snyder said he hopes the governor will sign the bill.

“From a transparency perspective, so what?” he said. “I don’t care whether the candidate is a Democrat or a Republican. I think the people ought to be able to know as much as possible about the candidate before they vote.”