Senate appealed to AG on DiZoglio’s legislative audit petition

Campbell sided with DiZoglio, rejecting Senate's objection


AUDITOR DIANA DIZOGLIO’S proposed ballot-box appeal to crack open the Legislature’s books for her inspection cleared a key hurdle last Wednesday. And it turns out that Attorney General Andrea Campbell, by certifying that the initiative passed legal muster, overruled a formal objection from the state Senate.

DiZoglio served two terms in the Senate and three in the House before taking over the auditor’s office in January. As a legislator, she frequently butted heads with branch leaders on procedural and staffing matters, and called for greater transparency in the Legislature — a theme she carried over into her 2022 campaign that ended with her capturing the statewide auditor’s office.

Early in the new term, the Methuen Democrat announced she planned to follow through on her promise to audit the legislative branch with a wide-ranging review of “budgetary, hiring, spending and procurement information, as well as information regarding acting and pending legislation, the process for appointing committees, the adoption and suspension of House and Senate rules and the policies and procedures of the House and Senate.”

After House Speaker Ronald Mariano and Senate President Karen Spilka indicated they would not comply with the attempted probe, and questioned its legality, the auditor began moving toward legal action in July. DiZoglio addressed a 27-page memo to Campbell seeking the AG’s support in exercising her “authority” — “by litigation if necessary.”

With a potential lawsuit still in the cards, DiZoglio added a second front to the battle in August by also moving to place the issue before Massachusetts voters. While she has argued all along that the auditor’s office already has the power to investigate the Legislature, the potential ballot question would explicitly enshrine that ability in statute.

Campbell’s official summary of the initiative petition is simple: “This proposed law would specify that the State Auditor has the authority to audit the Legislature.”

The push for a ballot law apparently struck a nerve in the Senate, where Senate Counsel James DiTullio penned a three-page letter to Campbell on Aug. 11 asking the attorney general to reject DiZoglio’s initiative petition because it is “not in the ‘proper form.’ ”

DiTullio argued that the question’s language would “limit the Senate’s constitutional authority to make its own rules and manage its own proceedings,” and that the proposed law “triggers serious concerns related to Article 30 of the Massachusetts Declaration of Rights and the separation of powers doctrine.”

Calling for Campbell to scuttle DiZoglio’s potential ballot question, DiTullio contended it should have instead been filed “in the form of a constitutional amendment” rather than a proposal for a new statute, because the language “attempts to fundamentally recast two constitutional principles.”

Constitutional amendment proposals go through a different process — which involves the Legislature getting a crack at rewriting the text, or deciding if a proposed amendment even reaches the ballot at all. A three-fourths vote of a joint House-Senate session can amend such a question before it gets to the ballot. The Senate president typically wields the gavel in those joint sessions.

Asked by “On The Record” host Ben Simmoneau if voters should be the “ultimate decider” on the question of audit power, Spilka didn’t say. She said on the WCVB-TV program that aired Sept. 3 that she believed “that right now the auditor does not have the power, either statutory or Constitutionally under the separation of powers.”

“I believe that it’s important for folks to know, we do — the Senate does — believe in transparency and accountability. We perform annual audits every single year by a certified public accounting entity that does governmental audits. When they’re done, we put them on our website for everybody to see,” the Ashland Democrat said. “We have all of our spending, payroll, financials on the comptroller’s website. So we are transparent and accountable under that. If folks want to know what’s going on in the Senate, they can follow through Journals, and Calendars, and other things that are on our website so people can see all of that.”

DiZoglio told the News Service on Thursday she thought Senate counsel’s letter was more evidence of elected lawmakers “working to block access.”

“It’s deeply disappointing, but not surprising, that Senate leaders would push back against giving the people of the commonwealth an opportunity to voice their opinion regarding this important matter,” the auditor said. “We are frequently ranked as the least transparent state legislature in the entire nation. Families are exhausted with the antics. They want to know that they can trust their elected officials, and it’s really challenging to do that when those elected to serve are working to block access to what’s happening regarding our tax dollars.”

DiZoglio added, “I’m very grateful to the attorney general and her staff for the work they did to advance this question to the ballot and now we have a lot of work to do in ensuring that voters have the opportunity to let legislative leaders know how much they want increased transparency, accountability, and accessibility.”

While the topic was not debated publicly, the letter was written “[o]n behalf of Senate President Karen E. Spilka and the Massachusetts Senate.” Spilka’s office did not directly respond to a question Thursday about how counsel was directed to compose the letter.

“Senate Counsel was acting in its capacity as legal representation of the Massachusetts Senate,” a Spilka spokesman said.

The House of Representatives did not send a similar letter to Campbell, the speaker’s office said.

After Campbell overruled the Senate’s objections this week and certified the question, top Beacon Hill lawmakers could still try to derail the petition by challenging its certification before the Supreme Judicial Court.

There’s a lengthy runway for such a challenge. A pair of SJC opinions from 2016 “strongly urge plaintiffs to bring challenges to ballot initiatives by February 1 in election years,” according to an article from 2016 on Foley Hoag LLP’s “State AG Insights” blog.

“So it sounds like you don’t support a ballot question here that would put this matter to the voters,” Channel 5’s Simmoneau said to Spilka on Sunday’s show.

“Well, I believe that there still are not only statutory issues but Constitutional issues,” the president replied.

Spilka’s office did not respond to a News Service question about whether the Senate or its counsel intends to challenge the certification.

“They’re more than welcome to pursue anything they wish,” DiZoglio said of a possible challenge. “I hope that they will choose to err on the side of transparency and accountability to the people they serve, rather than their own interests.”

Meet the Author

Sam Doran

Reporter/photographer, State House News Service
In a footnote to his letter, which was sent a month ago, DiTullio wrote that the Senate would transmit a “separate submission” to Campbell “[i]n the coming days” covering “the broader question of whether the Auditor, in her official capacity, has authority under existing law to audit the General Court.”

Asked Thursday whether that second letter had been sent, and if so, if a copy was available, Campbell’s office, which released the DiTullio letter to the News Service, seemed to imply that the letter existed. A Campbell spokeswoman said Thursday that “the submission referenced is privileged and otherwise protected from disclosure.” Spilka’s office, however, contended on Thursday that a “separate letter has not yet been sent.” On Monday, another Campbell spokeswoman said the AG’s office had not received the second letter, and would review in the future whether it could be shared publicly.