How Low Can They Go?

As the protests over Trump’s tax returns happen all over the country today, the Huffington Post has an article on the bills in 26 states to force Presidential candidates, and therefore Trump, if he makes it and runs in 2020, to release their taxes.

Bills have been offered in blue states like New York and California and red states like Iowa and Ohio. They have been offered by Republicans and Democrats alike. And polls show that an overwhelming majority of Americans want Trump, and by extension all Presidential candidates, to release their taxes. One poll shows that 88% believe it is important for Trump to release his tax returns in order to “be more honest and transparent with the American people.” Multiple attempts by Democrats in Congress to require Trump to release his taxes have been thwarted by the Republican majority.

There is an open question of whether such state bills would actually pass constitutional muster. But election law expert Rick Hasen believes that the outrageous Bush v. Gore decision in 2000 may actually open the door for states to take this action. According to Hasen, “the Court wrote that even though state legislators have given each state’s voters the right to vote for presidential electors, at any time a state legislature can ‘take back the power’ to appoint electors.” This would mean that state legislators could “overrule” any electoral votes to a candidate who had not released his taxes. Whether they would choose to do so is another, entirely political, matter.

It is highly ironic that the entirely political decision of the Court in 2000, which the Justices at the time took pains to describe as having no precedential value, is being cited more frequently and could be used if these tax release bills are ever passed and challenged in court. As Hasen notes, lower courts, especially the Sixth Circuit, have begun to cite Bush v. Gore in certain voting rights cases.

But Hasen provides some caveats to the idea of these tax release bills in order to get on the ballot. He says, “Democrats should consider the Pandora’s box they might be opening here. Will solidly Republican states allow electors to vote only for Republican candidates for president? If the tax gambit is OK, then such a law might also be constitutional.” 

This is where we have come to with the Republican party. A governing norm that has been in place for 40 years entirely because of the corruption of a Republican president has been ignored by the current Republican president, with full support of his Congressional party. So, using the normal democratic processes, Democrats have tried to enshrine this governmental norm into state law. This is hardly radical legislation and is well within the norms of the usual struggle between the state and the federal government. But the immediate thought that Hasen has is that Republicans will take this attempt to enshrine a governing norm in state legislation as an opportunity to create a purely partisan law that would mandate state electors in the states the GOP controls vote for the Republican Presidential and Vice-Presidential candidate. It is, in fact, Hasen’s expectation that the GOP would try to do this.

Hasen is no political partisan. But this is what the expectations have come to these days. The Democrats attempt to enshrine a governmental norm will be twisted by Republicans into a partisan advantage. And, just to show how this has become the norm in expectations for the actions of each party, the Huffington Post article does not even mention how outrageous and anti-democratic such an action would be.

To repeat what I said in my last post, the Republican party is the reason for partisan polarization and, to quote Mann and Orenstein one more time, “The Republican Party has become an insurgent outlier — ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.” The anti-democratic nature of the Republican party has been on full display for the last twenty years at a minimum. It’s time to stop accepting that analysis as just a given, point out just how damaging it really is, and fight back with everything we’ve got to save our democracy.