Question 1: Voters to weigh in on giving auditor authority to review House and Senate business

Question 1 on November’s ballot asks voters whether the state auditor has the authority to audit the Legislature. The idea is a longtime pledge made by current State Auditor Diana DiZoglio, pictured here in March addressing lawmakers.

Question 1 on November’s ballot asks voters whether the state auditor has the authority to audit the Legislature. The idea is a longtime pledge made by current State Auditor Diana DiZoglio, pictured here in March addressing lawmakers. Chris Lisinski/State House News Service

By SCOTT MERZBACH

Staff Writer

Published: 09-29-2024 10:01 AM

A longtime pledge by State Auditor Diana DiZoglio to audit the state Legislature, contending this will provide more transparency and accountability to legislative proceedings, is coming before voters at the November election, after she was unable to convince legislators to allow such work to take place.

On Question 1 on the ballot, voters are being asked whether DiZoglio should have the authority to audit the Legislature in the same way she does other state agencies, giving her the ability, as she puts it, to do “wide-ranging review(s) of the House and Senate’s budget, hiring and spending practices, plus information about active and pending bills, the processes for appointing members to committees, and how the rules, policies and procedures get made.”

Approval of the measure, according to a voters guide printed by the Secretary of State’s Office, “would specify that the state auditor has the authority to audit the Legislature.” Rejection would mean no change in the auditor’s authority.

While various polls indicate that the idea has widespread public support, being backed by the Committee for Transparent Democracy and the Massachusetts Fiscal Alliance, a similar initiative has already been rejected by a joint panel of legislators, with leaders citing separation of powers of the legislative and executive branches, of which the auditor is part under the Massachusetts Constitution. But there is no active opposition to the measure, with the main public critics being constitutional scholars and civics educators.

It’s also uncertain about what exactly would happen and how much of the legislative workings DiZoglio and her team would actually be able to examine with a favorable vote. Tufts University’s Center for State Policy and Analysis, which conducts research on ballot questions ahead of elections, wrote in a report released this month that some legislative activities are off-limits to executive interference.

“Votes, debates, committee assignments, policy priorities — these are all ‘core legislative functions’ that the Massachusetts auditor will not be able to examine even if Question 1 passes,” the report says. But passage may allow the auditor to look into compliance with employee training rules, cybersecurity norms and purchasing practices within the Legislature, though typically in other states an auditor needs permission from legislators to do that.

In March, members of a Special Joint Committee on Initiative Petitions recommended against “An act expressly authorizing the auditor to audit the Legislature.”

DiZoglio defended her appeal at the time as sensible and not an effort to usurp authority of the Legislature.

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“Respectfully, we can only audit what’s been done,” DiZoglio said.

She said the audits would reflect on the past and report to taxpayers of Massachusetts what has occurred, rather than going into meetings where ongoing policy considerations are happening.

“You cannot influence what’s already happened — it’s already happened, it’s in the past. We can only learn from it, so that if mistakes were made, history doesn’t repeat itself,” DiZoglio said. “Why wouldn’t we welcome that opportunity? What is there to hide?”

Her predecessor in the role, though, Suzanne Bump, said politics are at the root of the initiative rather than the objective, fact-based, non-partisan behavior expected of an auditor.

Bump said DiZoglio, unable to advance her policy goals as a former legislator, has become a vocal critic of the Legislature.

“Her clearly stated goal is to gain the power to change the operations of the state Legislature, another branch of government,” Bump said.

And legislators who spoke at the time implied that DiZoglio’s efforts would erode the independence of the government’s three branches,

State. Rep Michael Day said there would be a fundamental shift in the nature and form of government.

“To me, this fancy piece happens at the ballot box and then at reorganization,” Day said.

The Legislature has pointed out that legislative audits are conducted annually by the private firm CliftonLarsonAllen and typically include an overview of how the legislative process works and financial statements on budgetary accounts, but there is no line item breakdowns of spending.

Both branches are exempt from the state’s public records law, and while subject-matter committees hold livestreamed public hearings to vet proposals, bills often advance or change quickly with no public notice — or die quietly without any public record of how every lawmaker voted — and many big decisions are made behind closed doors.

Most local legislators mum

While the auditing idea is largely opposed by the Democrat-led House and Senate, local legislators, who are all Democrats except for Rep. Kelly Pease, R-Westfield, whose district includes Southampton, are, for the most part, not weighing in.

Sen. Jo Comerford, D-Northampton, said she is not taking a public position on the ballot question.

But Comerford said she has been consistent in her public support for transparency and accountability in the Legislature, as well as voting in favor of efforts to make committee votes and testimony public.

Comerford said all of her formal correspondence and votes are posted on her website, and she is letting her own actions speak to her endorsement for transparency, accountability and productivity.

Sen. Paul Mark, D-Becket, wrote in an email that it seems inappropriate to get involved in Question 1.

Similar sentiment was offered by state Rep. Lindsay Sabadosa, D-Northampton, who said she is only actively endorsing “yes” votes on Questions 2, 3 and 4.

State Rep. Aaron Saunders D-Ludlow, whose district includes New Salem, Wendell and Shutesbury, pointed to the Legislature already being annually audited by an independent, third-party auditor.

“Residents in western Mass understand that the separation of powers is one of the most important facets of our democracy,” Saunders said. “Adoption of Question 1 would infringe on this basic constitutional principle by attempting to authorize political interference by the executive branch, in this case the state auditor, into core legislative functions.”

State Sen. Jacob Oliveira, D-Ludlow, said the question is fundamentally flawed.

“Every year, the Legislature undergoes a rigorous audit by an independent, non-partisan private firm, which is posted on the Legislature’s website, ensuring full financial accountability to the public,” Oliveira said.

“Recent attempts by the state auditor, one individual, to dictate how a 200-member elected body, chosen by the people every two years, represents an unconstitutional overreach that infringes on the operations of our commonwealth’s lawmaking body,” he added. “This is a politically motivated power grab by the auditor funded by rich individuals and right-wing organizations. Question 1 is more about advancing personal ambition and undermining the people’s branch, the Legislature, than serving the public in good faith.”

Other legislators who didn’t immediately respond to requests for comment include state Reps. Pease, Dan Carey, D-Easthampton, Mindy Domb, D-Amherst, Natalie Blais, D-Deerfield, and Patricia Duffy, D-Holyoke; and state Sen. John Velis, D-Westfield.

The constitutional question is where opposition lies, with the official voters guide referring people to Jerold Duquette, a professor of political science at Central Connecticut State University who lives in Longmeadow. Duquette provided testimony at the legislative session and is among scholars and civics educators who say that an audit, without the Legislature’s consent, would violate the separation of powers and legislative supremacy described in and required by the Massachusetts Constitution, and turn the auditor into a political actor and policymaker.

Duquette said in a phone interview that while he doesn’t disagree with DiZoglio’s goal of greater transparency, the constitutional difficulties are obvious. He worries that the initiative will harm her credibility and ability to do her work by asking voters to do something that violates a constitutional principle.

DiZoglio is also misrepresenting and oversimplifying the auditor’s job, Duquette said, confusing oversight with checks and balances. Auditing is typically performance auditing, where an auditor looks at the substance and examines effectiveness, and DiZoglio wants to hold legislators to a level of transparency that is not required by any law.

Attorney General Andrea Joy Campbell already determined that the state auditor did not have the authority to audit the state Legislature. Campbell wrote that the statute that authorizes the auditor to audit state programs, departments and agencies does not include the legislative branch.

With passage of the measure, Duquette said he sees a “cat-and-mouse game” taking place and more of what is known as “institutional combat,” similar to what happened when voters approved clean elections.

An irony could be that while DiZoglio is pursuing her own progressive goals, it tends to be Republicans, the party in the significant minority, who are supporting the measure because it could cause turmoil.

“This could set back the option of transparency, or at the least lessen the notion that transparency could be useful to progressives,” Duquette said.

Without vigorous debate, there is no chance voters turn down the measure, and Duquette said it’s likely the Supreme Judicial Court will eventually get involved to compel the Legislature on certain aspects.