TWO WEEKS BEFORE Massachusetts voters are scheduled to vote on a ballot question giving her office the power to audit the Legislature, Auditor Diana DiZoglio released a performance audit of an uncooperative House and Senate that contained little new information while signaling her desire to pursue information that raises constitutional separation of powers issues.
Polls indicate DiZoglio’s ballot question is expected to pass overwhelmingly, but any victory is likely only the beginning of a legal struggle over what operations of the Legislature the auditor can audit without infringing on the authority of a separate branch of government.
The audit released Monday focused heavily on some pubic-facing aspects of the Legislature, including independent financial audits by outside parties the House and Senate authorize each year, procurement processes, and the efficacy of the Legislature’s website.
It also delved into many aspects of the Legislature’s inner workings, including whether the House and Senate are pursuing “an equitable mode of making laws,” whether bills supported by a majority of House and Senate members are being “considered,” whether services are being provided equitably to all members and staff, and the lack of transparency surrounding leadership and committee appointments.
“More active participation by the full chamber in the nomination and selection of members for committee assignments and leadership positions could result in more equitable representation of the members and, by extension, the people of the Commonwealth, helping prevent concentration of power amongst a few,” the audit states.
The Legislature, unlike most auditees, did not respond to any of the audit’s findings. But after its release House and Senate leaders did weigh in with caustic responses.
House Speaker Ron Mariano issued a brief statement dismissing what he called the “purported audit” of the Legislature. “The auditor has abandoned all pretext of faithfully performing her statutory responsibilities in favor of using her office for pure political self-promotion and electioneering,” Mariano said. “The auditor should instead be focusing on her statutorily mandated reviews, as she continues to underperform her predecessors in the completion of that important work.”
A spokesperson for Senate President Karen Spilka issued a statement noting the Massachusetts constitution and its separation of powers clause dictates that the Senate manage its own business and set its own rules.
“The auditor is singularly focused on the upcoming election and promoting her ballot question, while the Legislature has been busy doing the people’s business: passing legislation to provide residents the largest tax cuts in more than a generation, increase access to housing, provide free community college for everyone, decrease the pay equity gap, create a safer Commonwealth through gun safety reform, provide greater access to educational opportunities for our youngest learners, and confront the climate crisis. With due respect to the auditor, we’ll keep our focus there,” the statement said.
DiZoglio argued in her audit that the Legislature’s refusal to cooperate with the audit demonstrated a fundamental misunderstanding of the separation of powers doctrine. “The separation of powers doctrine forbids departments from exercising the powers of the other departments; it does not preclude oversight by one department over another,” the audit stated. The audit also noted that the Legislature would not be required to implement any of the changes recommended in audits.
Evan Horowitz, the executive director of the Center for State Policy Analysis at Tufts University, who issued a report on the DiZoglio ballot question earlier this year, said he was surprised the auditor would use her office’s resources to release an audit of the Legislature before the voters have spoken.
He also said DiZoglio in her audit seemed to be wearing two hats – that of auditor and that of someone campaigning for a ballot question. He said he was surprised DiZoglio did not try to steer clear of areas clearly under the prerogative of the Legislature. “There are several elements here that are out of bounds,” he said.
DiZoglio’s audit of the Legislature covered fiscal years 2021 and 2022, roughly the period from July 2020 through July 2022. The audit criticizes the House and Senate for failing to properly release the independent audits the branches commissioned during those years. Mariano and Spilka said the branches do not control the audits and any delays in their release may have been caused by Covid.
The audit also conducted an in-depth comparison of the Legislature’s website with the websites of five other legislatures and concluded the Massachusetts Legislature could do a better job communicating legislative activities and policy debates to the public.
Beyond the independent audits and the website, the DiZoglio audit ventured into a host of areas that have been fodder for critics of the Legislature for years – its opaqueness, the concentration of power, the way higher-paying chairmanships are handed out, and DiZoglio’s own pet peeve — the use of the type of nondisclosure agreements she signed when she was an aide in the House.
House and Senate leaders often point to a letter Attorney General Andrea Campbell wrote to DiZoglio on November 2, 2023, in which she responded to a request from DiZoglio to recognize that the auditor’s office has the power to audit the Legislature.
Campbell responded in the negative. “The State Auditor’s Office is a creation of the Legislature and is vested with the authority granted to it by the Legislature,” Campbell wrote. “For the reasons set forth in this letter, that authority does not include the power to audit the Legislature itself over the Legislature’s objection.”
Nevertheless, Campbell recently said she may end up voting for DiZoglio’s ballot question. “I believe in auditing the Legislature,” she said. “You just have to do it within constitutional constraints.”
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