Mark Patterson observes that Donald Trump refuses to make the personal tax disclosure that is routinely and without exception expected of senior federal officials. He describes Congress’ strict enforcement of this obligation, which includes the deep probing of returns by the Senate Finance and other congressional committees that, in Patterson’s words, require “answers [to] dozens of detailed questions about sources of income, deductions, investments, tax treatment (and immigration status] of domestic employees and other topics.” Yet Trump says that in his case, it is “none of your business,” and so he is relying on the absence of any legal requirement of disclosure to deny the public what the senior officials he would appoint if President would have to provide. Patterson recommends that either the law be amended to compel presidential candidates to release this information or to provide it to congressional committees for review followed by a public assessment. (Note: Mark is one my colleagues at Perkins Coie.)

Why would presidential candidates, charged with reporting specific categories of financial information, not have to include their tax returns? The choice now is deemed to be theirs: a choice determined only by the pressures, or incentives or disincentives, of the political “marketplace”, or a personal sense of ethical obligation.

Committing this question to a purely political resolution represents a judgment that voters will set and enforce the transparency standard. They will either reward disclosure or punish candidates for resisting it, but one way or the other, voter will is what counts, and there is no need or place for a legal requirement. In fact, on this theory, it is better for the question to be referred to the voters, because they are the ones to ‘vet” the presidential candidate and to insist on what information they should have to meet their “vetting” function.

Donald Trump doesn’t have any particular feeling for irony and so he misses it altogether in his recent suggestion that the coming election is likely to be rigged against him. Of course he’s now doing the rigging: he’s rigging the post-election assessment of the results. If he wins, it reflects the will of the electorate; if he loses, that will has been thwarted, by a rigging.

This raises the question discussed here of whether, if there are limits to ends-justifies-the-means political ethics--if it is accepted that there are superior and inferior types of political morality-- Trump has exhibited clearly a moral style that is both distinctive and troubling.

It does not seem that there is a clear and shared view of when political ethics have become unacceptable, and so, in Trump’s case, the analysis has now shifted to issues of mental health. It is not suggested that his lying exceeds the limits of the ethically permissible but that we have departed from the domain of ethics altogether.

Talk about the corrupt politician is usually concerned with the exploitation of public position for personal gain. He misuses his office, or makes that promise, because he is dealing for himself—looking for personal profit or a political advantage, and leaving to the side the public interest he should be representing. And for the most part, he is condemned.

But if he stops short of that and engages in undesirable conduct to win his office and “get things done,” then the sense is that we are in the presence of the usual nasty stuff politics is made of, such as a certain amount of deceit and double-dealing and promise-breaking and just “hardball.”  It is widely, if not happily, accepted that the morality of politics is of a different kind, and politicians, effective ones, have no choice but to behave periodically in unattractive ways-- politics being what it is.

We also assume that there are limits the politician should observe. We would want the politician to exhibit, privately or publicly, a “habit of reluctance,” a discomfort with the moral costs of behaving certain ways. The fear would be that if there were no such reluctance, there would be, in the words of Bernard Williams, no “obstacle to the happy acceptance of the intolerable.” “Politics and Moral Character,” in Moral Luck (1981), at 63. The Nixon White House that arranged for sophomoric “dirty tricks,” like flooding an opponent’s state headquarters with unwanted pizzas, could and did slide toward far more serious misdeeds.  And the Nixon example shows that the moral choices in a campaign are not irrelevant to the choices made in governing.

Where in all these considerations does Donald Trump fit in? As a candidate and now the nominee of a major party, he has engaged in and made a splashy display of tactics that include notable carelessness with or disregard of facts, vicious personal behavior toward others, and threats to do personal harm (as in threatening to expose Ted Cruz’s wife etc.) He has drawn the charge of being a “demagogue” and a “bully”, of being “vulgar” and grossly irresponsible in the tactics he favors and the policies he advocates. What is left unclear is whether he is like Nixon, or he is a special case.

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.

Assessing Lobbying Reform in the Obama Administration

Presentation to the American University Conference on Lobbying Reform in the U.S. and the E.U.

March 17, 2014