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AG Ferguson writes that requiring presidential candidates’ tax returns is “likely constitutional”

Washington State Attorney General Bob Ferguson published an opinion Tuesday saying a proposal requiring candidates for president and vice president to disclose their federal tax returns before appearing on Washington ballots is “likely constitutional.”

The opinion came the same day a bill passed off the Senate floor that would require such candidates to disclose their last five years’ worth of federal returns in order to appear on the state’s primary- or general-election ballots.

Public testimony in both chambers against bills to that effect has focused on their potential for inviting a legal challenge due to unconstitutionality.

Ferguson addressed the opinion to Sen. Marko Liias and a group of other senators, all Democrats, who asked for the attorney general to weigh in on three questions (each as paraphrased in Ferguson’s opinion):

“1. Is Washington State precluded by the Presidential Qualifications Clause in Article II, Section 1 of the United States Constitution, another federal constitutional provision, or federal statutes from requiring that in order to appear on the November ballot in a presidential year in Washington State, candidates for President and Vice President of the United States must disclose their federal tax returns?”

Ferguson’s answer, in brief: “Probably not.”

“2. Would an amendment to Washington elections laws violate the United States Constitution or any federal statutes if it required that, in order for their names to appear on the presidential primary ballot, candidates for President of the United States must disclose their federal tax returns?”

Ferguson’s answer, in brief: “Probably not.” And,

“3. May Washington State’s elections laws be amended to prohibit the Secretary of State from accepting a certificate with the names and addressed of presidential electors chosen by a political party or convention if the presidential or vice presidential candidate nominated by that party did not release their federal tax returns in the 12 months prior to receiving the nomination?”

Ferguson’s answer, in brief: “Probably yes.”

His opinion also includes the legal reasoning behind each answer.

Before answering any of the questions, however, Ferguson made clear that several of the constitutional questions raised “present a close call about which reasonable legal minds could disagree” and that the bill becoming law would bring on a legal challenge.

“…although we opine below that the disclosure requirement you propose is likely constitutional, we want to emphasize the uncertainty inherent in this answer,” the opinion reads. “We also want to emphasize that our role in an Attorney General Opinion is to give our best assessment of the law, not to take a position on the merits of a particular policy. Ultimately, whether the Legislature should enact a proposal like the one you have asked about is a policy decision for the Legislature to make. Our office stands ready to defend such a proposal should the Legislature enact it. We simply want to be clear that such a proposal would definitely be challenged in court and would face a meaningful risk of invalidation.”

Now, the Senate bill heads to the House for further consideration. Sen. Liias offered the following statement on the opinion via email:

“Senate Democrats are committed to supporting election transparency and fighting corruption in government. By requiring presidential candidates to disclose their tax returns, SB 5078 would give Americans confidence that our nation’s top elected official is not making decisions out of narrow financial self-interest.

As supported by the Attorney General Opinion released on Tuesday, I believe Washington state has a proper constitutional role to set forth conditional ballot requirements. In doing so we can prevent the kinds of corruption the framers of the U.S. Constitution sought to prevent when writing our country’s founding document more than 200 years ago.”