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Eye on Annapolis

The Daily Record's Maryland state government blog

Md. Senate passed bill that ‘is not clearly unconstitutional’

The Maryland Senate on Monday night gave final approval to legislation that could ultimately require candidates for president of the United States to release their tax returns as a condition of appearing on the ballot in the state.

Sen. Paul G. Pinsky, D-Prince George's County. (The Daily Record / Bryan P. Sears)

Sen. Paul G. Pinsky, D-Prince George’s. (The Daily Record / Bryan P. Sears)

The 28-18 vote capped a bitter debate over the bill that stretched back more than a week as opponents expressed concerns about the whether such legislation would pass constitutional muster.

Sen. Paul G. Pinsky, D-Prince George’s and lead sponsor of the bill, did little to resolve the issue, telling the Senate that the General Assembly’s own counsel issued an advisory letter declaring the bill “not clearly unconstitutional” while raising a number “constitutional issues.”

“We want to ensure the voters of Maryland have that information,” Pinsky told reporters after the vote.

Pinsky and other lawmakers have expressed outrage over President Donald Trump’s refusal to release his federal tax returns — a gesture that is traditional but not legally required.

Pinsky said the public has a right to know about Trump’s complex financial holdings and how that might affect his decision-making while in office.

“It really is a new day,” Pinsky said. “I think going forward we need to know if a president has a dubious relationship with a foreign entity, if they have a liability of a billion dollars. It is not a condition to run for president. It is a condition to be on the ballot.”

California and New Jersey passed similar bills that were both rejected by their respective governors, citing constitutional concerns.

“People expect it, they want it,” Pinsky said of the legislation.

But opponents of the bill — all 14 Republicans and four Democrats (Sens. Jim Brochin, James “Ed” DeGrange, Kathy Klausmeier and Jim Mathias) — disagreed.

“This bill is the most childish bill I’ve ever seen,” said Sen. Stephen S. Hershey Jr., R-Middle Shore and Senate minority whip. “I’m embarrassed it’s even on the floor.”

Brochin, D-Baltimore County, said the law illegally adds release of tax returns as a condition for appearing on the Maryland ballot.

“Show me where that is a qualification for being a candidate of the United States,” said Brochin.

Sen. Steven M. Waugh, R-Calvert and St. Mary’s, argued that passing the legislation sets Maryland up to be embarrassed nationally.

“If we pass this bill we’ll get hammered and humiliated and we’re going to lose,” said Waugh.

But Pinsky, citing a 2017 advisory letter from Sandra Benson Brantley, counsel to the General Assembly, said the law was “not clearly unconstitutional.”

Brantley, in her letter, noted that the U.S. Supreme Court has imposed a number of limits on what states can do in terms of imposing qualifications on federal candidates. But she also acknowledged there is a blurry line between “permissible ballot access and unconstitutional qualifications for office.”

“In the final analysis, there is no doubt that your proposed bill raises some constitutional issues,” Brantley wrote. “An argument can be made that requiring candidates for president to waive their right to confidentiality of their federal income tax returns in order to appear on the state’s ballot is an undue burden on the First Amendment right of candidates and their supporters. Moreover, it is possible that a court would declare the state is imposing an additional qualification for those offices. At the same time, it is very possible a court would find that the state’s broad authority under…the U.S. Constitution includes the ability to determine that it is in the state’s best interest to mandate the provision of this information for voters.”

Pinsky, in discussing the advisory letter, was critical of Brantley’s advice, saying it was too soft.

“I think she should have been stronger in saying it is allowable but she didn’t say it’s unconstitutional,” said Pinsky, adding that people want to know what’s in the tax returns.

When asked if he thought Maryland residents also wanted to have confidence that prospective laws would be constitutional, Pinsky told reporters: “I think that’s secondary. I don’t think they’re thinking three steps ahead if you ask voters do you think you should have knowledge of any candidates tax returns I think 80 percent would say yes.”

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