The House’s Response to Voters’ Transparency Concerns May Undermine the Auditor’s Political Leverage

Jerold Duquette & Lawrence Friedman

Yesterday, the Massachusetts House of Representatives passed H.5469, “An Act Promoting Transparency & Public Access in State Government.” The proposed law appears intended to blunt the now years-long rhetorical assault on the legislature, the attorney general, the governor, and the rule of law by State Auditor Diana DiZoglio. As well, the bill seeks to respond to both the genuine transparency concerns of voters and the genuine constitutional concerns of legislators (as well as those of state constitutional law and state government scholars).

The bill takes on two issues: a pending ballot question which, if adopted, would subject the legislature (and the governor’s office) to the public records law; and the scope of the authority to audit the legislature conferred on the auditor by a November 2024 ballot question. As described by the State House News Service, that part of H.5469 that concerns public records requests would

create a Legislature-run system through which people could request documents from 17 specific categories that would be defined as “legislative records.” Those records would include legislation, resolutions, summaries, fiscal notes, amendments, committee votes, the results of committee electronic polls, finalized leadership assignments, financial records provided to the comptroller, written disclosures from members under Chapter 268A, and more.… The regular public records law, though, would be applied to the governor’s office. But only for records created on or after Jan. 7, 2027 — the start of the next gubernatorial term.

As framed, the proposed law would avoid many of the constitutional issues raised by the pending ballot question, which, if adopted, would simply add the legislature to the list of governmental entities subject to public records requests. Because the legislature is substantively distinguishable from all of those entities, the law would never be a good fit with requests for legislative records: many, many records requests would result in litigation, and much of that litigation would have resulted in disappointment to the records-seekers when a court deemed those records immune from disclosure under the state constitution’s speech and debate clause, which protects lawmakers’ deliberative activities. As noted by Common Cause executive director Geoff Foster, the proposed legislation would avoid “many constitutional concerns” that would be raised by subjecting the legislature to public records requests under the existing law, and there should be little doubt that the 17 specific categories listed in the bill contain records that presumptively fall outside of the protection of the constitution’s speech and debate clause.

Turning to the second part of the legislation, H.5469 seeks to narrow the very broad legislative audit authority created by the 2024 ballot initiative, but not to eliminate it. It would confine the auditor’s authority to four specific categories of “administrative functions”: the adoption of the official budget of either branch or joint legislative operations, the commissioning and receipt of any official audit of either branch or of joint legislative operations, the expenditure of funds appropriated to either branch or for joint legislative operations, and the execution of any monetary settlement agreements entered into by either branch with a member, officer or employee. In no event could the auditor go farther back in time than fiscal year 2021 (the year Ron Mariano became House speaker and the first year that DiZoglio has sought to audit). The law would eliminate the auditor’s recourse to judicial review when the legislature does not cooperate in the audit process.

Politically, the proposed modification to the auditor’s authority vis-à-vis the legislature seems motivated by a collective desire to respond to the acknowledged frustration with the General Court’s perceived lack of transparency and, to the extent that is, in fact, the motivation, it might well be genuine. If DiZoglio has been successful in nothing else, she has got people riled up about the legislature and transparency.

Still, the law in its current form could well be subject to challenge by the auditor on separation of powers grounds—not because the legislature has eliminated judicial review, but because the law arguably interferes with the state auditor’s constitutional discretion to conduct audits. While she has already complained that “courts have a constitutional right to adjudicate laws,” this is not so. The judiciary has no constitutional authority to adjudicate absent the jurisdiction to do so, and the jurisdiction of the courts has long been defined by the legislature. Judicial review is a constitutional check designed to be employed when necessary, not merely when the opportunity arises.

It is far from clear, however, that the legislature can cabin the auditor’s authority to conduct an audit as she sees fit. As we have noted, the auditor is a constitutional officer who essentially serves to ensure that the legislature’s budgetary allocations to the various executive departments of the Commonwealth are being spent appropriately. The legislature has full control over the auditor’s responsibilities, but there must be some power she possesses by virtue of her constitutional status, and it is likely the discretion to conduct the audits the legislature has empowered her to pursue. As written, H.5469 provides that any audit under the law must be conducted according to “the procedures and requirements set forth” in the law and, to the extent the law “does not address a particular aspect of audit procedure, the state auditor shall apply the standards for audits of governmental organizations, programs, activities and functions published by the Comptroller General of the United States.” While the auditor can apply various standards in the conduct of any particular audit, it may be constitutionally significant when they have no choice in the matter.

Further, if a court were to agree and conclude that this part of the law violates the separation of powers, there is a question whether the court would simply strike the offending provisions and leave the rest standing—that is, an audit of the four categories of administrative function listed, but conducted according to the auditor’s own lights. That law might not be one to which members of the House would have signed on in the first place—it’s not difficult to see that, from the legislature’s perspective, the deal was straightforward: the auditor gets the power to audit a few items, while the legislature retains some control over how that audit would be conducted.

Of course, it’s too soon to speculate further about how the proposed law would fare in court. At the moment, it may be that the law will serve to undermine DiZoglio’s political leverage in respect to the public records ballot proposal, not least because that part of H.5469 was endorsed by credible actors who will be more difficult for the state auditor to successfully demonize: the A.C.L.U, Common Cause, and the Massachusetts Newspaper Publishers Association have all endorsed the public records compromise as a way to avoid a public records ballot fight in the fall.

Unsurprisingly, DiZoglio’s response to the bill in its entirety has featured complaints about the lack of transparency in its development. She even went so far as to complain that her office was not included. The thing is, if her office had been included, she would not have added value: behind our criticism of the auditor’s faux constitutionalism is the reality that deliberative democracy is the goal of American-style democracy, not plebiscitary democracy. At best, the auditor’s crusade against Beacon Hill reflects a misunderstanding of the difference. Given DiZoglio’s repeated failure to acknowledge, much less respect, basic American legal principles, it seems more likely that the auditor is motivated less by philosophical commitment than by politics, especially to the extent it serves her own ambitions.