HOUSE . . . . . . No. 4603
The Commonwealth of Massachusetts
_______________________
HOUSE OF REPRESENTATIVES
_______________________
REPORT
of the
SPECIAL JOINT
COMMITTEE
on
INITIATIVE PETITIONS
on the
INITIATIVE PETITION
of
DIANA DIZOGLIO
AND OTHERS
FOR THE PASSAGE OF AN ACT
EXPRESSLY AUTHORIZING THE AUDITOR
TO AUDIT THE LEGISLATURE (see House, No. 4251)
_______________________
April 30, 2024.
_______________________ MAJORITY REPORT.
A majority of the Special Joint Committee on Initiative Petitions (“The
Committee”) recommends that the Initiative Petition 23-34, House 4251, “An Act
expressly authorizing the Auditor to audit the Legislature,” (“the Initiative Petition”) as
currently drafted and presented to this Committee, OUGHT NOT TO BE ENACTED BY
THE LEGISLATURE AT THIS TIME.
The purpose of this report is to provide a recommendation to the full legislature on
whether to accept the Initiative Petition as written for consideration and enactment.
The proposed Initiative Petitions would give the Auditor authority to audit the finances
and workings of the state legislature.
Testimony
The Committee heard from experienced professionals, proponents and opponents of the
Initiative Petition, as well as members of the general public.
The Committee first heard testimony from experienced professionals. Christopher
Rogers, CPA and Managing Principal, State and Local Government at the accounting
firm CliftonLarsonAllen LLC, testified that his firm conducted audits of the
Massachusetts House and Senate. He was followed by the Comptroller of the
Commonwealth, William McNamara, who explained the responsibilities of his office
including the administration of the Commonwealth’s Financial Records Transparency
Program. The Committee then heard from two academics. David C. King, Senior
Lecturer in Public Policy at the Harvard Kennedy School of Government, and Jeremy
Paul, Professor of Law at Northeastern University, provided testimony relating to the
constitutional issues raised by the Initiative Petition
The Auditor, Diana DiZoglio, testified in support of the Initiative Petition as did a panel
consisting of former Representative Daniel Winslow, Mary Connaughton of the Pioneer
Institute, and Paul Craney of Massachusetts Fiscal Alliance.
Former Auditor Suzanne Bump and Jerold J. Duquette, Professor of Political Science at
Central Connecticut State University, testified in opposition to the amendment.
Conclusion
The statutory change would undermine the well-contemplated balance of constitutional
powers between the branches of government as established by the framers of the
Constitution of the Commonwealth. As 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, testified during The Committee’s public
hearing “. . . I want to warn voters and this Legislature that House 4251 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.”
The Office of the State Auditor is a member of the Executive Branch of the government
of the Commonwealth. Both the United States Constitution and the Massachusetts
Constitution enshrine the separation of powers among the three branches of government,
while creating various checks and balances on those powers. What this Initiative Petition
seeks to do, however, is to transfer, by statute, authority explicitly vested by the
constitution in the legislative branch, not to the electorate, but to the executive branch
thereby violating the foundational constitutional principle of separation of powers. As
Jeremy R. Paul, Professor of Law at Northeastern University, stated in testimony
submitted to The Committee “I believe there are strong reasons to conclude that it would
be such an overreach and thus there is a significant likelihood that Massachusetts courts
would be forced to invalidate a statute adopted by the Initiative Petition that tracks the
current language.”
Notably, a recent action taken by the Trial Court supports the conclusion that the
Auditor’s proposed audit of the General Court would violate the separation of powers
established in the Massachusetts Constitution. In a letter sent to the Office of the State
Auditor on August 24, 2023, the Trial Court wrote that it was declining to continue
responding to requests related to an audit of the Trial Court’s Office of Jury
Commissioner. Although the Trial Court, like the General Court, is a part of a separate
branch of government from the Auditor and therefore not subject to the Auditor’s
authority, it nevertheless consented to the Auditor’s request for an audit. It was only after
the Auditor unilaterally expanded the scope of her audit that the Trial Court rescinded its
consent, making clear that the Auditor had exceeded her authority and violated the
separation of powers principle.
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 proposed the Initiative Petition 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. In fact, a member of the panel that testified in support of the Initiative
Petition, former Representative Dan Winslow, indicated that if the Initiative Petition was
approved by voters, it would most likely be challenged on constitutional grounds, as the
language is overly broad. He went on to suggest that the Legislature should change the
Initiative Petition, so it did not “intrude on core legislative functions.”
It is for these reasons that the Commonwealth’s chief law enforcement officer, Attorney
General Andrea Campbell, in evaluating the Auditor’s assertion of authority to audit all
functions of the legislative branch, declared that the proposal “raise[d] separation of
powers issues” and “constitutional concerns” about impermissible interference with or
encroachment on “powers uniquely granted to the Legislature.”
The House and Senate, under their individual governing rules, require a yearly financial
audit conducted by an independent auditing firm. These audit reports are available to the
public. The Legislature’s financial records and accounts are available on the Commonwealth’s
Financial Records Transparency Platform (“CTHRU”), administered by William
McNamara, Comptroller of the Commonwealth, who testified at The Committee’s public
hearing. CTHRU includes detailed and comprehensive information regarding payroll,
expenditures, and other financial information, including the amounts paid to state
vendors. Additionally, all legislative sessions and committee hearings are live-streamed
and recorded and can be found on the General Court’s website. Access to information
about all bills and amendments, including roll call votes and journals and calendars from
the House and Senate are also available online.
As part of her testimony in support of the Initiative Petition, Auditor DiZoglio shared a
visual representation of documents she described as past audits to claim precedent exists
for auditing the Legislature. However, further research established that 74 of those 113
audits (many of which date back to the 19
th
century) were mere financial accounting
reports similar to what is now publicly available on the Comptroller’s CTHRU website.
The remainder are the financial statements of specific divisions within the Legislature. As
Attorney General Campell has stated, despite the existence of numerous Auditor’s reports
on certain discrete activities or entities within the legislative branch, there is “no
historical precedent at all for the type of audit the [Auditor] seeks to conduct now: a
sweeping audit of the Legislature over its objection, which would include review of many
of its core legislative functions.”
The majority of The Committee notes that the Auditor, during her campaign and in public
statements, has frequently cited perceived political mistreatment in the Legislature.
Suzanne Bump, former Auditor of the Commonwealth, testified that the proper subject of
government audits are government programs authorized by the Legislature to serve
public purposes, not the functions of the legislative branch of government. As Bump
stated, because the Massachusetts Constitution enables the Legislature to govern itself
through its own rules and procedures, there are no objective criteria by which the Auditor
can assess it; such an audit would be inherently subjective and thus inconsistent with
well-established auditing standards. In addition, Auditor DiZoglio lacks the objectivity
required to audit the Legislature in accordance with the Generally Accepted Government
Auditing Standards (GAGAS), also known as the Yellow Book, due to the Auditor’s
recent service in the Legislature, as well as the clear prejudice that the Auditor has
publicly expressed against the Legislature.
For these reasons, we, the majority of the Special Joint Committee on Initiative Petitions,
recommend that “An Act expressly authorizing the Auditor to audit the Legislature” (see
House No. 4251) as currently drafted and presented to this Committee, OUGHT NOT TO
BE ENACTED BY THE LEGISLATURE AT THIS TIME.
Senators. Representatives.
Cindy F. Friedman Alice Hanlon Peisch
Paul R. Feeney Michael S. Day
Jason M. Lewis Kenneth I. Gordon