A Legal Tug-of-War between the Massachusetts State Auditor and the Legislature

April 5th, 2024 in Administrative Law, Analysis, Legislative Operations, State Legislation

The Commonwealth of Massachusetts finds itself at a constitutional crossroads as the legal tug-of-war unfolds between the State Auditor and the Legislature. In August 2023, the Massachusetts State Auditor, Diana DiZoglio, sent a letter to Attorney General Andrea Campbell stating she was conducting an audit of both the Massachusetts Senate and House of Representatives (the Legislature). This audit would include “budgetary, hiring, spending, and procurement information, information regarding active and pending legislation, the process for appointing committees, the adoption and suspension of legislative rules, and the policies and procedures of the Legislature.” However, Campbell responded that the auditor cannot unilaterally probe the Legislature without its consent. In this case, both Ronald Mariano, Speaker of the Massachusetts House of Representatives, and Karen Spilka President of the Massachusetts Senate rejected DiZoglio’s audit. They reasoned that the financial documents of the legislature are made public and the other information DiZoglio is requesting violates the separation of powers. This conflict is not new but rather a historical tug-of-war between the branches of government and the delegation of powers. This debate requires a comprehensive analysis of statutory powers, historical positions, and constitutional considerations.

DiZoglio is asserting her power to conduct this audit under the State Auditor’s enabling statute, M.G.L. c. 11 § 12. Section 12 directs the State Auditor to audit “accounts, programs, activities and functions directly related to the aforementioned accounts of all departments, offices, commissions, institutions and activities of the commonwealth, including those of districts and authorities created by the general court and including those of the income tax division of the department of revenue.” The language that Campbell focused on was the meaning of “departments” and whether the Legislature was intended to be included in that term. Campbell scrutinized various cases and the texts of other statutes using this term concluding that “department” is more restricted than it appears. From a historical perspective, the term “department” appeared in the text of the statute in 1920 at the same time the Massachusetts’s general laws were enacted and when the Executive Branch was reorganized into “departments.” Upholding the precedent of her predecessors, Campbell adopted the view that “the word ‘department’ in statutes such as these should in general encompass only executive branch departments.”

DiZoglio contends that the Auditor’s Office has a precedent for auditing the Legislature, citing historical reports conducted on various agencies. The Auditor’s Office originally was charged with collecting annual reports on various government agencies that was eventually transferred to the Office of the Comptroller when that office was created 1922. The pre-1923 reports provided a broad overview of the financial information specifically detailing how the Legislature could reduce its expenditures. Campbell pointed out that the information that the Auditor is currently requesting goes beyond the limited scope and the functions the Auditor currently possesses. The reports from 1923-1971 were once again narrowly construed to certain entities “under the purview of the Legislature,” but not the Legislature as whole as DiZoglio is attempting to do now. From 1972-1990, the Auditor conducted audits of three specific legislative entities and reporting on their expenditures, appropriations, and other miscellaneous income. In 1978, the Senate stopped complying with the Auditor’s audits after the Massachusetts Supreme Judicial Court decided Westinghouse Broadcasting Co. v. Sergeant-at-Arms of General Court (Mass. 1978). In Westinghouse, the Court held that “the records generated by the Legislature could be made available to outsiders only at the discretion of the House and Senate leadership.” The Senate cited this holding to restrict the Auditor’s access to certain records. From 1990 until 2023, the Auditor conducted three narrow audits of legislative operations: addressing overpayments to a court officer in 1992,  IT-related controls by the Sergeant-at-Arms in 2002, and Legislative Information Services in 2006. In contrast, the Auditor’s proposed broad audit will scrutinize core legislative powers rather than specific issues or entities.

The enforcement of orders for document production against the Legislature raises serious constitutional questions related to the separation of powers. These concerns were raised by former State Auditors, Suzanne Bump and A. Joseph DeNucci. If the Auditor  moves forward with the audit, it would require the Superior Court to enforce those orders against the Legislature’s consent. As provided by the Massachusetts Constitution, the legislative branch has the authority to establish its own rules and proceedings. Thus, if the Judiciary enforced the audit against the Legislature, it would be interfering directly with the Legislature’s core functions. Although Attorney General Campbell did not go so far as to define the extent of the constitutional limitations, it did acknowledge the potential for such an issue to arise.

The Attorney General’s Office holds firm that the Auditor’s current authority does not extend to auditing the Legislature without consent. In response, the Auditor sought to ask the public whether she has the authority to audit the legislature through a question on 2024 ballot. DiZoglio’s proposal received over 100,000 signatures and is on track to be included on the 2024 state-wide ballot. First, however, the Legislature reviews the proposal, with the Judiciary Committee holding a tense hearing in March 2024.  DiZoglio testified,

“Our office provides a resource to this commonwealth. Contrary to the narrative that some legislators and their supporters have been spinning, [my] office is not the FBI. We do not go in and raid people’s offices. We do not have the ability to toss desks. Our staff conducts performance audits. Audits. The amount of opposition to audits from this body is deeply, deeply disturbing and concerning on so many levels.”

However, Jeremy Paul, a law professor at Northeastern University, testified that the courts may invalidate the new law if the voters approve it in November.

“I submit that the power to audit may well turn out to be the power to destroy. It’s one thing to push for greater transparency in legislative operations so that the public is given more information. It’s entirely another to give an elected official inside the elected branch discretion to decide which legislators can be called to account for what reasons and when.”

Thus, the saga continues, serving as a constant reminder of the delicate balance that needs to be struck within our democratic system between responsibility, transparency, and the preservation of constitutional principles.

Abigail Rooney West anticipates graduating from Boston University School of Law in May 2024.