THURSDAY, FEBRUARY 20, 2025
This is an essay I've had kicking around for a bit. I may continue working to refine and expand upon it. There's been so much hype about the executive audit of the state legislature lately, but so much of it has been detached from a recognition of basic constitutional law principles, that I've felt the need to pull this together. ~Rep. Mike Connolly
First, full disclosure: I voted Yes on Question 1 back in November.
I did so because I recognize our state legislature has significant gaps in its rules and processes, particularly with regard to transparency — so I felt it was important to join with my constituents in expressing a desire for reform and greater transparency.
Further disclosure: I consider our State Auditor, Diana DiZoglio, to be a friend and a valued colleague.
Diana sat with me in the Second Division in the House before she was elected to the Senate, and we’ve supported each other on various matters over the years. Back in September, we walked the Italian feast together in East Cambridge, and back in 2023, I stood with her at the state convention as she gathered signatures for her ballot question to audit the legislature.
I think it’s fair to say Diana has done more to advance the cause of legislative transparency than anyone in recent memory in Massachusetts — and for that, we should all thank her. As someone who has long pushed for greater transparency in the legislature myself — I salute Diana for the impact she is having.
That said, there’s always been a big cloud hanging over the Auditor’s quest to audit the state legislature — namely, the Massachusetts Constitution.
The 1780 Constitution of the Commonwealth of Massachusetts, drafted by John Adams, is the world's oldest functioning written constitution. It served as a model for the United States Constitution, which was written in 1787 and became effective in 1789.
Under our state constitution, initiative petitions (like last year’s Question 1) are reviewed by the Attorney General prior to going on the ballot to ensure they conform with requirements for ballot question subject matter. However, the actual constitutionality of a proposed law itself isn’t up for judicial review until after people vote to pass the question into law. So as it stands, the constitutionality of the new law is still officially unknown.
Now that the voters have spoken, and Question 1 is on the books as Chapter 250 of the Acts of 2024, it appears the constitutional issues presented by this new law are probably headed to the Massachusetts Supreme Judicial Court.
This should come as no surprise. From the outset, legal scholars and public policy analysts have warned the auditor's powers under Question 1, if any, would likely be limited.
Last year, the Center for State Policy Analysis at Tufts University produced non-partisan reports on all five ballot questions. Regarding Question 1, executive director Evan Horowitz wrote: There is a fundamental constitutional reason the auditor can’t necessarily audit the legislature, namely separation of powers.
Moreover, Horowitz added that the transparency issues many of us are most concerned about — such as ensuring committee votes are made public — are unlikely to be covered by any potential executive audit of the legislature.
SEPARATION OF POWERS
The Massachusetts Declaration of Rights, Article 30, establishes the Separation of Powers provisions of our state constitution:
In the government of this commonwealth, 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, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
Last year, David C. King, Senior Lecturer in Public Policy at the Harvard Kennedy School and Faculty Chair of Harvard’s Bi-Partisan Program for Newly Elected Members of the U.S. Congress, warned that an executive audit of the legislature is "exceptionally unwise . . . the Massachusetts separation of powers became foundational for our national constitution. The Auditor’s proposal chips away at this foundation. I do believe it is that dire. The Auditor is proposing an unprecedented transfer of power from the people’s representatives into the Executive Branch."
DELIBERATION, SPEECH, AND DEBATE
The Massachusetts Declaration of Rights, Article 21, provides the "deliberation, speech and debate" clause of our state constitution:
The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
This is an extraordinarily broad provision that calls into question how the Auditor could accomplish several of her stated goals. For example, the auditor has said she would like to examine how the legislature sets priorities, makes committee assignments, or how bills with a majority of members signed on as co-sponsors are handled — but this kind of inquiry could inevitably make legislative "deliberations" and "speech" subject to an "action" in some "other court or place" — contrary to our state constitution.
THE LEGISLATIVE POWER TO MAKE RULES
Another key provision from the state constitution is Chapter 1, Section III, which establishes the powers of the legislature. Article X of that section says the House "shall settle the rules and orders of proceeding in their own house," and Article XI applies the same language to the Senate.
This could be another hurdle to an executive audit of the legislature. On its face, the voter-approved law gives the auditor the power to "require the production of books, documents, vouchers and other records" by the legislature.
But since the legislature has the exclusive power to make its own rules, and since the rules of the legislature generally determine the ways legislative records are produced and shared, through journals, webpages, clerk's offices, etc. — and since our Separation of Powers clause says the executive shall never exercise the legislative power — the SJC might look at this and conclude that, notwithstanding the text of the law, the constitution itself cannot support it.
THE RULE OF LAW
In drafting our constitution, John Adams was deeply committed to the rule of law. Most famously, he agreed to defend British soldiers who had fired into a mob of colonists during the Boston Massacre. He was determined to win freedom from England, and yet Adams still believed that these soldiers were entitled to a zealous defense. This speaks to his commitment to the right of all to fair proceedings, an idea that developed into his philosophy of a government based on laws and not men.
Unfortunately, the State Auditor's efforts so far raise concerns about the Rule Of Law.
After exiting the legislature and entering the role of Auditor in 2023, the Auditor quickly initiated her first audit of the legislature, as she had pledged to do in her campaign. However, it wasn't at all clear that state law gave her the power to do this.
So, the Auditor did two things — she launched a ballot question campaign in the summer of 2023 to gain the statutory power to audit the legislature — and she wrote to Attorney General Andrea Campbell, asking her to advise if the Office of the State Auditor actually had the legal authority to proceed under the existing statue at that time.
In a thoroughly-researched memo later that year, AG Campbell advised that the Auditor did not have any statutory authority to audit the legislature. Nevertheless, Auditor DiZoglio barreled forward — continuing to audit the legislature throughout the 2023-2024 term, while simultaneously seeking approval from the voters to get the statutory authority to do the same.
Two weeks before Election Day last year, the Auditor published her first audit of the legislature — despite the fact that the state's top law enforcement officer — acting in her legal advisory role — clearly indicated that the Auditor did not have the statutory power to conduct an audit of the legislature.
I find this chain of events to be rather stunning. To maintain credibility, I think it's important for an auditor to make it clear they are scrupulous in their adherence to the Rule of Law. By continuing to work on her first audit of the legislature — despite clear warnings she did not have the statutory power to do so — we are reminded of the very same kind of behavior we now see from the Trump Administration — a point recently echoed by Senate President Karen Spilka.
WHY THESE PRINCIPLES MATTER MORE THAN EVER DURING TRUMP'S SECOND TERM
Today, we are bombarded with outrageous news from Washington, DC. "Donald Trump has put the constitutional separation of powers in the United States on trial...threats from the president and his allies to ignore adverse judicial rulings risk a historic rupture in American governance and law," says Reuters.
Meanwhile, the American Bar Association is sounding the alarm about how the Trump Administration is engaging in "wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity."
John Adams and our other founders were quite familiar with how a tyrant operates. They understood that to safeguard liberty, all of the people's representatives had to be free from coercion and overreach by an executive. As the Report of the Special Joint Committee on Initiative Petitions wrote last year:
In a representative democracy, power rests with the constituents who elect their Representatives and Senators and hold them accountable. Rather than achieve its stated goals, the (new law) would limit the power of the voters who elect Members of the Legislature by expanding the powers of the Executive Branch; essentially, the Auditor would supplant the people for herself in holding the Legislature accountable.
Of course, I understand why, for many of my constituents, shifting some power from this legislature to the this auditor might sound like a pretty good idea. Yet we grapple with these constitutional questions precisely because we don't know who may be sitting in the Auditor's chair at some point in the future, or what their intentions may be, or who will be funding them, or what kind of leverage they may exert over the legislature — or how that might corrupt the democratic process in our Commonwealth.
In the long run, defending the power of the legislature to manage its own affairs is about preserving the time-tested principles that have kept autocracy at bay for nearly 250 years in America — principles that must continue to stand as Trump tries to dismantle them from every angle.
WHERE DOES BEACON HILL GO FROM HERE?
As I wrote at the top, Auditor DiZoglio is having a big impact. Last week, the Senate passed new rules that included additional transparency provisions. And recently, House Leaders pledged to increase transparency as well, with long-sought goals, such as making written testimony available and committee votes public, now "on the table."
Speaker Mariano has repeatedly acknowledged that 72% of Massachusetts voters supported Question 1, and so the legislature must take action to address the concerns that sparked all that public support. After years of pushing for rules reforms, this feels like a hopeful moment.
As for me, I have pledged to follow the rule of law, the will of the voters, and of course, I also took an oath to support our constitution. Soon after Question 1 passed, there was talk circulating that perhaps the legislature might simply vote to scrap the new law from the books. I stood up in the State House and online to say I could not support any effort to nullify the law. So, if it ends up being the case that the SJC finds the Auditor does have power to audit the legislature, I will support that holding.
And to be sure, my recognition of these constitutional questions doesn’t diminish my commitment to legislative transparency. The public deserves transparency, voters have expressed a clear desire for accountability and reform, and legislative leaders now seem to be coming along. As I said at a recent community gathering, "I don't think we can say Yes to Transparency, Yes to Good Government, and Never Mind the State Constitution." The constitution truly matters, especially in this moment.
For now, recent independent, professional audits of both the House and the Senate are posted on the webpage for the Clerk's Offices of each chamber. And, going forward, the House has adopted a new rule to allow the Auditor to select which independent, professional auditing firm does the annual audit of the House.
My suggestion for the Auditor: it’s long past time to course correct. In this chaotic moment of Trump-Musk-Vance and Project 2025, please acknowledge the significance of the constitutional provisions that safeguard the independence of the legislative branch from executive interference. You could simply say, "I want to do the audit, and I care about getting it right with the constitution." In the long run, doing so will make your quest for transparency stronger. Let us all do what we can to support the constitutional principles that just might save our democracy from the second Trump Administration.
