In the last two election cycles, in both major parties, presidential candidates and the press have argued over the timeliness and completeness of the release of personal tax returns.  This year, the disagreement has taken a new turn with the possibility that one of the candidates will not release his filings at all.  Editorialists have argued for compliance with the “norm” of disclosure that has been observed for decades.  John Wonderlich of the Sunlight Foundation questions why release is just a “norm” and not a legal requirement, and he argues for a new law.

That the release of taxes remains a norm and not more may be explained by a number of factors.  For elected officials, there’s always the fear that there is no stopping point.  If Congress were to mandate the release of returns by presidential candidates, the question would naturally turn back on them–why they would not put themselves under the same obligation.  Gradually other elected officials might feel the same pressure, which could eventually also influence the judgment about whether the returns provided by senior government officials during the vetting process should also be subject to public disclosure.  To keep a norm a norm is to keep the underlying transparency expectation within limits and to leave issues of compliance to public debate and judgment.  It serves also to maintain a balance between exposure of this information some of the time, in a narrow set of circumstances, but only by public expectation and political choice, preserving the overall principle of privacy.

There may still come a tipping point when the norm is deemed insufficient and a legal requirement is put in its place.  It is hard to say when that point might be reached.

The most obvious reason for a shift is the collapse of the norm.  If defined as “a rule for behavior departure from which renders a person liable to some kind of censure,” Simon Blackburn, Oxford Dictionary of Philosophy (ed. 2008) at 254, a norm functions well only for as long as there is bite to the censure for disregarding it.  A Presidential candidate who successfully resists disclosure, suffering light political consequences and setting a “precedent” for others to consider, could be laying the groundwork for others to do the same.  The failure of public disapproval to keep up the norm invites lawmaking with more compelling penalties.  Or it may mean that the norm will just wax and wane, and there is not enough public demand to support a legal requirement that legislators might be reluctant to enact in the first instance.

As Sunlight notes, there is a fairly clear opening to a legal requirement.  The Ethics in Government Act already requires presidential candidates to disclose in broad categorical terms their personal finances.  Mr Wonderlich of Sunlight argues that Congress could just amend the Act to provide for the disclosure of tax information.  It would have to make a set of choices and take precautions—some account would have to be taken of “pre-existing privacy protections”, and some attention paid to “questions about enforcement, accuracy, timing of disclosure and redaction standards.”

Wonderlich argues that these are all “relatively minor details.”  Whether these details are judged to be minor or major will vary with the observer and where along the scale from “norm” to “mandate” they would locate the transparency interest.

There is, of course, always some trade-off, both costs and benefits, in substituting a legal requirement for a norm. in the former case, the candidate does what the candidate must do, and no more, and the information supplied is presumably worth more than the additional test of whether he or she would agree in the absence of the legal requirement to provide it.  But sometimes, in politics, there is a much to be gained from letting the candidate make the choice: flout the norm or honor it, and if honoring it, how completely and timely.  Certain norms may also serve the interest in transparency in this way, one level deeper.