Taxpayers will foot the bill for lawmakers to resist deep audit overwhelmingly approved last election

Bay State voters faced a simple and straightforward choice this past November—either endorse institutional opacity as usual, or force elected leaders to relinquish the cloak of immunity their offices have enjoyed since short guys in shorter pants and curly wigs filled the walls of windowless State House chambers with soundproof horsehair plaster.

The ultimatum came in the form of a voter referendum—Question 1: State Auditor’s Authority to Audit the Legislature—championed by a relentless captain. Elected to her current seat in 2022 after serving in the state House and also Senate, representing districts on the northern edge of Essex County, Auditor Diana DiZoglio spearheaded the populist initiative to the outrage and consternation of entrenched Beacon Hill sovereigns.

Those former committee colleagues of the insider turned combative inquisitor are now seeking taxpayer-funded outside counsel to help block DiZoglio’s disinfectant. It’s a boggling but hardly shocking new development in a long-running saga; incensed Mass leaders have disparaged the auditor’s agenda since before the ballot campaign filed signatures to secure the Question 1 language, a battle cry in its own right that ricocheted around the golden dome. The text read in part … 

“The State Legislature is the only state entity refusing to be audited by the State Auditor’s office. Legislative leaders claim it is sufficient for the Legislature to conduct audits of itself through a procured private vendor. However, the Massachusetts Legislature is continuously ranked as one of the least effective, least transparent legislatures in America and is one of only four legislatures that exempts itself from public records laws.”

Q1 further promised to help “shine a bright light on how taxpayer dollars are spent to help increase transparency, accountability and accessibility for the people of Massachusetts.” And in response, residents in the lone state where legislators, judges, and the governor all claim exemptions to the public records law stood up for themselves for a change. On Election Day, nearly 72% of Mass voters penciled the “yes” bubble under the auditor’s question.

As some experts predicted, that was only the beginning of the fight. With the election over and mandate in place, taxpayers will nevertheless foot a likely massive legal bill before they ever get that audit, if it is even allowed to fully proceed in the first place.

Rumbling with State House royalty

Law 360 labeled it a “rumble.” MassLive called the fallout around Question 1 a raging “battle,” writing in December, “More than a month [after the election], DiZoglio is in a knock-down, drag-out fight with the two most powerful Democrats on Beacon Hill as she seeks to force lawmakers to open the books.” The “drama,” they wrote, has “everything,” pitting a “self-styled, scrappy underdog against two political titans in a fight to shine sunlight into the darkest corners of an institution that works overtime to resist change.”

One thing that the drama didn’t have until now, though, was a hired legal team working to thwart the will of voters. That’s about to change, as the bicameral titans are contracting more mercenary muscle. According to a request for proposals posted on the state’s portal for government contracts, the House of Representatives is seeking a firm to “serve as outside legal counsel … to assist with potential litigation that has been publicly threatened by numerous parties related to the recently approved initiative petition known as Question 1.”

Leadership has argued that the measure is beyond the legal pale since before voters pulled for reform. In a 2023 letter to DiZoglio, House Speaker Ron Mariano brashly rejected an assessment by the auditor—of performance, or of “active and pending legislation, committee appointments, legislative rules,” and “policies and procedures”—on grounds that it would violate separation-of-powers principles.

“Given that your attempt to conduct a performance audit of the House of Representatives exceeds your legal authority and is unconstitutional,” Mariano wrote, “your request to meet to begin such an audit is respectfully denied.”

With the measure approved, the speaker and his colleagues are prepared to use taxpayer money to defend their hard position, including in court if required. It’s a bold ironic move considering the subject of the referendum, but the maneuver doesn’t surprise Anthony Amore. A moderate Republican who ran against DiZoglio for auditor in 2022 and lost, his sentiments are more simpatico with those of his former opponent than with officials who conduct public business clandestinely behind closed doors.

“It should surprise no one that the House is using every tool at its disposal to keep the shades down and the sunlight out,” Amore told the Boston Institute for Nonprofit Journalism. “I hope people remember this come the next election and hold those people accountable who clearly don’t believe in accountability.”

Lawmakers have resisted this audit for two years

DiZoglio campaigned for office on the promise of impugning the untouchable cabal of government. After winning her election, she wasted no time making good on those pledges, and in March 2023 announced that her office was advancing an audit that “includes 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.”

With House and Senate leaders vocal in resistance and various legal questions remaining about the auditor’s authority to pry, four months later the Committee for Transparent Democracy formed with an eye on the 2024 election. Question 1 was born, then signatures inked, and ballot status attained.

In her statewide push to illuminate the legislature, DiZoglio did something that most of the politicians gunning for her haven’t done in decades—she ventured into Mass communities, where she spread the word about the comically unaccountable culture of commonwealth government. In addition to releasing a preliminary audit last October that her office conducted without cooperation from the legislature, the auditor went door to door and stumped from festivals to senior centers, literally holding babies among voters with one arm while figuratively fending off her infant adversaries on the other.

House speakers offered consolation audit

Since Question 1 passed, all the whining seems to be wearing on the attending body politic. As things go on Beacon Hill, legislators appear to be getting their way, which in this case means the public won’t. Boston pundits, always reliable cheerleaders for the status quo, have cynically dismissed the possibility of full implementation, arguing that most people have probably forgotten anyway. Voters, they say, have moved on to more pressing concerns, from backyard budget issues to the flagrant federal finagling of President Donald Trump.

Immediately following last year’s election, quivering officials started testing how loudly the public would allow them to laugh in the face of mandated reforms. In late November, the House speaker offered the consolation of allowing DiZoglio to select an independent audit firm for the same limited performance review that the legislature conducts every year anyway.

“The financial audit will be automatically posted to the Legislature’s website, and will be conducted annually,” Mariano wrote. “While Question 1 has not yet gone into effect, this proposed rule change is the first step in the House’s effort to respect the will of the voters without violating the separation of powers clause that is foundational to the Massachusetts Constitution. We look forward to a broader rules discussion early next year.”

As her rivals circled the wagons in conclave, DiZoglio punched back on social media: “To the House members currently caucusing: If you strip away the ability for our office to conduct the audit, you give yourselves the ability to control the scope of the audit, by an outside firm, since you’ll still control how much you pay for the audit, what you will allow their scope to be, and what you will allow them to examine or not examine — you’ll be giving yourself control over every aspect of the process which will be overseen by you, and not our office, exempting yourself from oversight — yet again — slapping voters in the face.”

In which the Senate president compares the auditor to Trump

The disagreement has since escalated toward ugly. With Question 1 officially taking effect on Jan. 3, the auditor sent a letter to Sen. President Karen Spilka and House Speaker Mariano imploring compliance. In response, lawmakers formed a committee, which predictably charged that the ballot referendum “raises unprecedented constitutional issues.”

Returning the compliment, DiZoglio knocked leadership for “forming a subcommittee to avoid abiding by the law,” only to be one-upped on TV last Sunday. Speaking on WBZ, an unphased Spilka told interviewer Jon Keller that if people are worried about Trump’s takeover of Congress in DC, “they should be similarly concerned about the auditor trying to ignore [the] separation of powers in our constitution.”

“I am not against letting people know what’s going on,” the Senate president said. Instead of having the Office of the State Auditor monitor the legislature, Spilka suggested members of the public sort through countless hours of recordings on their own. She continued, “Everything from our salaries to our invoices to our services to our paper clips to everything is online. … People can watch the sessions. … We tape them. They can watch past sessions. We are working for even more transparency because I want people to know what we do.”

In her part, Mass Attorney General Andrea Campbell said her office would stay out of things unless the situation warrants legal attention, and at this point that’s a given. DiZoglio has motioned toward the courts, and Massachusetts Fiscal Alliance has threatened to sue over the squirrely hampering. The nonprofit watchdog group, which backed Q1 in spirit and financially, is aligned with a bipartisan coalition signaling similar sentiments. 

“This development shouldn’t surprise anyone,” MassFiscal Executive Director Paul Diego Craney said about the House securing outside counsel. “For years, legislative leadership has been hiding behind hollow constitutional concerns to avoid an audit by the state auditor. The speaker’s latest escalation in avoidance just once again proves, the legislature will go to great lengths to try to keep whatever they are hiding, hidden from the auditor and the public.”

Craney continued, “Legislative leaders want to dig in and continue to violate the voter approved law. With this development, Attorney General Andrea Campbell needs to bring the legislature to court and defend the voter approved law.”

Bids for outside legal services to help Mass House members sabotage Question 1 were due on Jan. 3. Some experts have said the issue is likely to end up in Supreme Judicial Court. If it does, the lawmakers defending the opaque current state of affairs will have an endless trough of tax dollars to pay for a white shoe law firm to shield their own self interest from the will of a majority of Massachusetts voters.

This article is syndicated by the MassWire news service of the Boston Institute for Nonprofit Journalism. If you want to see more reporting like this, make a contribution at givetobinj.org.