By Ziyue Zhu
Boston University News Service
Voter approval of Question 1 on the state’s Nov. 5 ballot, which would give the state auditor the authority to audit the Massachusetts Legislature, raises a number of legal and constitutional issues, experts say.
Auditor Diana DiZoglio worked to put the issue before voters as a solution to what she and a broad coalition of groups on both the left and right of the political spectrum view as a legislative body tightly controlled by House and Senate leaders and that lacks transparency.
But those legislative leaders insist the question would violate the separation of powers defined by the Massachusetts Constitution. A Tufts University analysis suggests the auditor’s office could not investigate legislative votes, debates, committee assignments, even lawmakers’ policy priorities — things that are considered to be the “unique prerogative of the Legislature.”
DiZoglio, who served in both the House and Senate prior to winning the auditor’s chair in 2022, began the ballot initiative process after lawmakers refused to cooperate with a current review.
“Not only are they refusing to cooperate with our office’s audit, but they are refusing those same documents to taxpaying members of the general public,” said DiZoglio. “That’s unacceptable.
“Accountability will be restored with the passage of Question 1 to ensure that there is transparency regarding how our tax dollars are being spent.”
Multiple public opinion polls have found overwhelming support for the question.
Suzanne Bump, who served as auditor for 12 years starting in 2011, said granting the power to audit the Legislature would “politicize and degrade the office” of auditor. In a hearing on Beacon Hill, Bump also said DiZoglio’s past work as a lawmaker poses a conflict with her intention to audit the chambers.
“This question implicates the Massachusetts Constitution,” said Bradley M. Baranowski, a professor of administrative law at Boston University, noting Article 30 states “the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers.”
The state auditor is considered a part of the executive branch.
Baranowski noted that while the constitution defines these boundaries, the branches of government are not “watertight compartments” and must interact to function effectively.
“The challenge,” he said, “is determining whether an audit crosses the line and violates the separation of powers.”
Traditionally, the Massachusetts auditor reviews state entities and contractors to assess their performance and recommend improvements. However, in an August 2023 letter to Massachusetts Attorney General Andrea Campbell, DiZoglio sought authority to audit not just financial information, but also budgetary, hiring, and procurement details, as well as information related to pending legislation, committee appointments, and legislative procedures.
Campbell issued a legal opinion that the auditor does not currently have statutory authority to audit the Legislature over its objection. The opinion did not take a position on the ballot proposal, but it did suggest that the proposal, if passed, would raise constitutional separation-of-powers issues.
Last week, Campbell said on WGBH that she was undecided on Question 1. “I believe in auditing the Legislature,” she said. “You just have to do it within constitutional constraints.”
Opponents of the question argue that if DiZoglio gains that power, it would give an executive branch official the ability to influence how the Senate and House create and manage their own procedures, which could interfere with core legislative functions and potentially violate the separation of powers.
One area open to possible review could be how the Legislature trains its employees.
Even if voters approve the ballot question, the Legislature may still have several ways to respond.
“They would probably either ignore the audit requests or actively fight them,” Baranowski suggested. This could lead to a court battle, as auditors have the authority to go to court to obtain the information they need.
However, lawmakers could argue that they are under no obligation to comply, claiming that the auditor’s actions are unconstitutional. Ultimately, this could be decided by the Massachusetts Supreme Judicial Court.
“There are strong reasons to conclude that this would be an overreach, and there’s a significant likelihood that Massachusetts courts would be forced to invalidate a statute adopted by the initiative petition,” said Northeastern University law professor Jeremy R. Paul.
The Legislature could also pass a funding appropriation bill that effectively prohibits the auditor from using any money for legislative audits. That would also require the approval of Gov. Maura Healey, who has taken no position on the question.
The ultimate question is what, if anything, Question 1 can do to open up the Massachusetts Legislature, which is often ranked among the least transparent and least accessible in the nation. The Legislature has exempted itself from public records laws and open meeting laws, and votes are frequently cast late at night with no recorded roll call.
DiZoglio said her intent in sponsoring the question was to “bring sunlight to the dark areas of state government.”
Her office released a performance audit on Oct. 21 that did not include documentation of expenditures or state contracting and procurement processes.
“Audits provide a service to state entities to help discover potential inefficiencies and to prevent potential abuse of tax dollars,” DiZoglio said. “Why would the state Legislature not welcome it? It causes us to wonder what are they so intent on hiding if they are so vehemently against a basic audit that every other entity participates in as a matter of routine.”
Baranowski is skeptical about the potential for increased transparency.
“What auditors can do is very limited, and it will distract the Legislature by creating a big court battle,” he said. The fight between the Auditor and the Legislature will raise many constitutional issues and could get tied up in the courts.
“State auditors play a crucial role in ensuring the executive branch meets performance standards, but the question is whether giving them the power to audit the Legislature and taking that battle to court will politicize the office,” Baranowski said. “It’s hard to predict whether that will happen.”
New Bedford Light staff contributed to this report.
This story originally appeared in The New Bedford Light.
