Thursday, March 19, 2009

Delaware House Bill 9 : Valid Mandatory Candidate Disclosure or Penalizing Exercise of Free Speech?

I am inherently skeptical of restrictions, regulations, and mandates on elections and candidates that go beyond merely technical administration of the process into the realm of substantive speech.

One example is an entire election system and ballot (Delaware's) designed around voters' "registering" statements of political party affiliation, or lack thereof.

Another example is to then use state government tracking of this information to enforce hierarchical (major/minor) treatment of political parties, as we also do in Delaware.

A shockingly-dismal example of how far this substantive structural bias has been codified is Delaware Code Title 15 § 4502(a) :

"...The device named and chosen and the lists of candidates of the Democratic Party shall be placed in the first column on the left-hand side of the ballot, of the Republican Party in the second column, and of any other party, and the space for the voter to write in the name of any candidate of that voter's choice for any office, in such order as the department of elections shall decide."

Think about that. The Delaware State Code not only singles out, by name, two specific political parties for ballot listing preference, but actually specifically guarantees one of those parties, by name, permanent "pole position" or first ballot listing.

Interesting that this very same party now controls pretty much the entire state. Not to say there is cause-effect, but one would be a fool to think that there isn't likely a significant segment of voters influenced, even if unconsciously, by the specific preferential ballot placement of any party on the ballot grid.

To deny such an influence would be the equivalent of saying that the old "party lever" on the old mechanical voting machines, by which one could cast votes for an entire party's ballot with the pull of one big lever, had no influence on the number of straight party line votes cast.

But I will save my criticisms of such process-enabled election bias for another day.

(Personally I support removing any party listings from the ballot or, in the alternative, structuring the ballot strictly around the offices and candidates, with party nomination(s) listed incidentally and on an individual basis.

Both would eliminate confusing multiple ballot listings for candidates, such as caused by Delaware's practice of structuring ballot listing purely around columns of political parties.)


This brings me to a bill proposed in the Delaware House to penalize any candidate's failure to make sworn affirmative declarations about their personal financial obligations, in particular their compliance with state, federal, and property taxes and child support.

House Bill 9, sponsored by Reps. Hudson, Cathcart, Gilligan, Viola, Blakey, Lavelle, Manolakos, Miro, Outten, Bennett, and Sen. Simpson :

"[R]equires all statewide and other candidates that may appear on the general election ballot to disclose (1) whether or not all their State and Federal income tax returns are filed and any tax due has been paid; (2) whether or not any child support payments pursuant to court order are current, and (3) whether or not all their real property taxes have been paid."

Specifically :

§ 4108. Candidate Disclosure Statement.

(a) Any candidate who has filed pursuant to § 3101 of this Title for statewide or other elective office which will or could appear as a candidate on a general election ballot shall, after August 1st and before September 1st of the election year, file a statement under oath with the State Commissioner of Elections that as of the date of signing, said candidate has:

(1) Filed all State and Federal income tax returns due prior to that date or has a pending extension of time to file said tax return(s);

(2) Paid all State and Federal income taxes that have been determined to be due as of the date of signing said statement;

(3) A court-ordered obligation to pay child support, and if so, has such been paid in accordance with the terms of their most current court order; and

(4) Paid all assessed real property taxes due prior to May 30th of the election year on any real property owned jointly or severally by said candidate.

(b) Any candidate failing to file the statement required by subsection (a) of this Section shall be fined $50 per day until said statement has been filed with said total fine not to exceed $3,000.00.

(c) The Commissioner of Elections shall post by September 8th the statement of each candidate required by subsection (a) of this Section on the office’s internet site and shall also post thereon the names of all candidates who have failed to file such statement.”.

I find this legislation troubling both for its specific mandates and for the door it opens to regulating candidate speech far beyond merely ascertaining constitutional eligibility for office or financial accountability bearing solely on the conduct of a political candidacy (a la campaign finance).

At what point can the state coerce, by penalty of substantial fines, a candidate to make specific statements, of any kind, under oath that are not necessary to establish bare basic compliance with constitutional qualifications to seek an office (such as age, domicile, etc.)?

Campaign finance is one thing. It involves money changing hands, to be spent for political purposes. Disclosure is legitimate, if only to force an accounting for money given to a candidate, ideally ensuring it is not misdirected or just plain pilfered.

But mandating statements of legal compliance with personal financial obligations, whether tax liability or child support? This is dangerous ground to tread and would establish an even more dangerous precedent.

Suppose someone is deep in personal debt because of personal challenges and is, at the moment, unable to make such an affirmative averment under oath?

Suppose someone is in an ongoing dispute with a taxing agency, even to the point of litigation, such that they cannot make the specific affirmative declarations required by this law?

Are they to be personally punished by a $3000 fine for exercising their right to remain silent?

Are they to be driven away from the political process, by default?

Are voters to conclude that failure to file such declarations means a candidate is a tax cheat?

What of this information in the hands of a law enforcement agency? Will these non-filing candidates risk being investigated for mere failure to speak on the matter?

What of a candidate who can, at least, make one or more but not all of these declarations? Is compliance an all or nothing proposition? If so, why so?


Obviously the bill's writers know they cannot require these declarations to be "yes or no" or "whether or not" statements of candidate compliance with tax and child support laws. They know, or should know, that to fine a candidate for not truthfully denying they have complied with any law would certainly invoke 5th Amendment protections.

But is this not what they are, in a sense, doing anyway with House Bill 9?

Given this is clearly designed to make public record not only of the specified mandatory affirmative declarations but also of the failure to make such declarations, how does this not expose a candidate to inferences that the failure to file means the candidate has not complied with tax or child support law in some manner, no matter how circumstantial, temporary, or de minimus?

To substantially penalize either the failure or refusal to make affirmative declarations of compliance with laws completely unrelated to a candidate's constitutional qualifications for office is a dangerous road to go down.

Once in place, the list of affirmative declarations required can be easily expanded into, for example, a statement of compliance with ALL laws.

The only possible alternative is to make such filing of sworn statements completely voluntary, making it effectively superfluous.


There are serious questions here that need to be explored about how far we are willing to go with such a mandate and its penalties for non-compliance.

My sense is that this is one of those nonsense ideas that grew out of the recent spate of tax-challenged Obama administration nominees.

But I have yet to see or hear public or even populist outcry for legislation in Delaware to address whether candidates have filed tax returns, paid all federal, state and property taxes, or paid all child support.

Even if I did, the constitutional implications, or perhaps more accurately the unconstitutional implications, of such a proposed regulation of candidate speech should not be stampeded by some present-day populist impulse or any politicians' desire to capitalize on it.

Child support delinquency would be about the furthest stretch I could see this bill legitimately going, and only because this involves the welfare of minor children. (Yes, I am "thinking of the children".)

I hope our General Assembly denies such ill-considered statutory mandates and realizes that the deeper consequences, intended or otherwise, are not worth such legislative pandering.

I hope they ask : is such a law really necessary in the public interest of free elections?

Is it in keeping with free elections and maximum candidate participation in our political process to coerce sworn statements from candidates about specific personal financial or legal compliance, making government the arbiter of such disclosures and/orthe failure to make them?

Wouldn't such specific personal probing of candidates be better left to our political process, rather than statute, and to the voters who are free to ask such questions and decide for themselves?

Do we really need another law to potentially scare citizens away from running for office, whether their trepidation is justified or not?


Miko said...

I'd suggest that the causation probably goes the opposite direction of your implication: the Democrats had a majority, and so were able to give themselves top billing.

Incidentally, putting the "major" parties first is something the majority of voters would probably approve of. Most people don't want to search through a list of the dozen or so candidates of the Prohibition, Socialist, Socialist Worker, Peace and Prosperity, Green, Purple, etc., Parties to find the one their looking for. For those of us who want to vote third party, those other ballot lines are there. For those that don't want to scan through a bunch of options that they'd never even consider, they don't have to.

Tyler Nixon said...

Believe me, Miko, it is a total joke in the context of Delaware election reality to assert the worry about voters weeding through myriad names and parties.

I would wager anywhere from 50-70% of all elections are uncontested, due in no small part to restrictive election laws citing the same potential non-problems you do.

When we reach the time that we have even just two candidates for every office in the state, maybe these laws could be justified. Otherwise it is just bullshit regulation and strangulation of the electoral process to favor the monied and the incumbents.

Thanks for your input.

tom said...

You are right. HB 9 is a terrible idea, as well as unconstitutional.

Why not formulate your objections into a resolution and see how many of the political parties and/or advocacy groups we can get to adopt it. The LPD should be an easy target. It looks like most of the sponsors are Republicans. Any reason for that?