The Corner

No Tax Return Left Behind?

Having thus far failed in their ongoing attempt to convince Mitt Romney to release more of his tax returns than are required by current law, Congressional Democrats are doing what they tend to do in these situations: proposing legislation. From the Washington Post:

Congressional Democrats are using the legislative process to pressure Republican presidential candidate Mitt Romney to release more tax returns and information about his investments in offshore accounts.

The push on the Hill represented a full scale legislative assault on Romney over the tax issue, as Democrats sense they may be getting traction over Romney’s refusal to release more than two years of tax information.

In the House, Rep. Sander Levin (D-Mich.) is proposing legislation that would require presidential candidates to release 10 years worth of tax returns and disclose any overseas investments.

And in the Senate, Sen. Dick Durbin (D-Ill.) and Sen. Carl Levin (D-Mich) are proposing beefing up financial disclosure forms for all candidates for federal office to require disclosure of overseas investments, including Swiss bank accounts.

Aside from the obvious — that this is a highly questionable and selective use of the force and fire of government power — the proposed bill raises a couple of constitutional questions. Mitt Romney, remember, has already fully complied with the law as it stands. Anything else he releases would be in the service of transparency, not legal compliance. Any subsequently passed legislation designed to bind a candidate running in this cycle would not only be in serious danger of containing elements of an ex post facto command, but, given the way in which the legislation appears to be tailored to a specific candidate, it would come dangerously close to being a bill of attainder, too:

The House bill would also require new disclosure of off-shore investments but specifically targeted the tax return issue. Rep. Sander Levin said Romney should “set the example” for future candidates and release his returns. But then he said the law must be changed so release of tax information is not at the discretion of candidates.

If implemented cleverly, the bill would most likely pass constitutional muster. But this would make it neither sensible nor reasonable. Congress should not get into the habit of changing the election laws in response to the political particulars of the present campaign. (Would Democrats be as comfortable with congressional interference if House Republicans tried to pass legislation to force candidates to release, say, their college transcripts or church-attendance records? I suspect not.) Clearly the issue of tax-return disclosure is not one that has plagued the republic for years and finally come to a head in 2012; instead it has become a point of contention because one of the candidates running in this cycle is extremely rich and the other party has realized that it can make hay out of that fact.

While one can argue that there is a moral case for Romney voluntarily to release more information about himself in the name of transparency, it is not an area with which Congress need involve itself. To avoid a dangerous precedent, both parties should reject these proposals with extreme prejudice.

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