Massachusetts House and Senate leaders do not intend to mount a campaign against a ballot question giving the state auditor the power to audit the Legislature.
Through outside consultants, House Speaker Ron Mariano (D-Quincy) and Senate President Karen Spilka (D-Ashland) said their two branches would not wage an opposition campaign leading up to the November election. That doesn’t mean they will accept the auditor’s power to audit the Legislature if the measure passes. The strategy suggests the lawmakers will, in such a case, allow the measure to become law and then challenge it in the courts, most likely based on a separation-of-powers argument.
Mounting a campaign against the ballot question would be challenging. The question has received overwhelming support in polls. In a poll released last week by the Emerson Polling Group on behalf of the Pioneer Institute, voters backed giving the auditor the power to audit the Legislature by an 80-6 margin.
The campaign will also take place at a time when the Legislature is facing a lot of criticism for not doing its job. At the end of formal legislative sessions on August 1, an all-night scramble ended with many key bills falling by the wayside. At the request of Governor Maura Healey, Mariano and Spilka say they intend to call the Legislature back into session this fall to deal with unfinished business, which might make it awkward to simultaneously be fighting a ballot question allowing audits of the Legislature.
“Who would want to go out there and campaign against it?” asked John McDonough, a former legislator who now works as a professor at the T.H. Chan School of Public Health at Harvard University. “I don’t see how [lawmakers] could fight it.”
Diana DiZoglio, who proposed auditing the Legislature during her successful campaign for state auditor in 2022, said she was disappointed to hear lawmakers don’t intend to fight her ballot question — yet won’t start cooperating with her office on an audit her office has been pursuing.
“Legislative leaders act as if they are battling me on this issue – one woman from Methuen – but they are really battling their constituents,” said DiZoglio, a former state rep, senator, and legislative aide who has been highly critical of the Legislature in the past.
She asked Massachusetts Attorney General Andrea Campbell in July 2023 to recognize her authority to audit the Legislature under current law. Campbell responded in early November with a letter saying the auditor did not have the authority to audit the Legislature without its approval.
“We are mindful, of course, that the question of whether the State Auditor’s Office (SAO) currently can audit the Legislature over its objection is different from the question of whether the SAO should be able to do so,” Campbell wrote. “The latter is, at least in part, a question of policy rather than a question of law. We do not reach that policy question here, and nothing in this letter should be understood as a policy statement. As you know, the Attorney General has certified an initiative petition as eligible for the November 2024 ballot to which you, in your individual capacity, are a signatory. Should the initiative become law, we may need to consider whether, and the extent to which, constitutional limitations affect how the law would apply. For now, we have confined our analysis to the issue raised by the SAO concerning the scope of your authority under current law.”
Even so, Campbell made a number of references in her letter suggesting DiZoglio’s proposed ballot law could face constitutional challenges if it is approved by voters.
“An unqualified auditing power sufficient to audit the Legislature over its objection would be difficult to reconcile with the powers vested exclusively in the Legislature by various parts of Chapter 1 of Part II of the Massachusetts Constitution, and protected from encroachment by Articles 21 and 30 of the Massachusetts Declaration of Rights,” she wrote.
DiZoglio said the attorney general should explain her position – giving the green light for the question to appear on the ballot but raising questions about its constitutionality if it becomes law. What role the attorney general would play in any eventual court fight over the ballot measure is unclear. Would she represent DiZoglio’s office, the Legislature, or stay out of the fray entirely?
For now, DiZoglio said she intends to stay the course, run her “slow and steady” campaign on behalf of the ballot question and possibly even run some advertising promoting the measure.
“We have one of the least transparent legislatures in the country,” she said. ”I’m going to keep doing my job and I’m going to keep getting the word out there.”
This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons license.
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Diana DiZoglio 
