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March 27, 2024

DiZoglio clashes with legislators as push for audit-focused ballot initiative continues

A woman sits at a desk in front of legislators Image | Courtesy of Chris Lisinski, State House News Service Sen. Cindy Friedman (left) and Rep. Alice Peisch (right), who lead a legislative committee tasked with reviewing proposed ballot questions, listen to Auditor Diana DiZoglio at a Tuesday hearing about a proposal to give the auditor's office explicit authority to audit the Legislature.

Did anyone really expect Auditor Diana DiZoglio's pitch to lawmakers about why she should be able to audit them to be dull?

A cart overflowing with stacks of old books, no-holds-barred warnings about government overreach, and personal feuds were all on display Tuesday as a legislative panel unpacked the implications of a DiZoglio-backed ballot question, which would give her office explicit authority to subject the House and Senate to audits from her office.

The hearing put the committee created to vet all of the proposed 2024 ballot questions in an unusual position: its members are simultaneously targets of the proposed reforms, stewards of its review in the Legislature and, at least as far as the Democrats go, subordinates of the measure's chief opponents.

"It's tough to sit here and listen to disparaging remarks about who we are and whether we're representing our constituents, but this is the democratic process and people get to do that," Sen. Cindy Friedman, one of the panel's co-chairs, told reporters after the hearing.

DiZoglio, who clashed with legislative leaders during her previous terms in the House and Senate, defended her campaign to open up the House and Senate to new scrutiny as a way to bring additional transparency to an opaque Legislature.

She said that she is "not seeking to usurp the power of the Legislature" or "exercise any of the powers of the Legislature."

"At some point, this body is going to need to face reality when it comes to these bogus arguments that are being perpetuated by the leadership team because the taxpayers of Massachusetts are smarter than the way they're being treated right now," DiZoglio said. 

"Our office provides a resource to this commonwealth," she added. "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."

Lawmakers have resisted DiZoglio's efforts, arguing that they already undergo their own audits. 

After Attorney General Andrea Campbell agreed that DiZoglio does not currently have the authority to examine the Legislature over its objections, the auditor launched a ballot question campaign seeking that power from voters. 

DiZoglio, who wheeled into the hearing room a cart full of what she says are past audits of the Legislature performed by her predecessors in the auditor's office, said Tuesday that Campbell "is refusing to support our effort and is instead supporting legislative leaders' refusal to comply."

Transparency and good government advocates have long criticized the Legislature.

Both branches are exempt from the state's public records law, and while subject-matter committees hold livestreamed public hearings to vet proposals, bills often advance or change quickly with no public notice -- or die quietly without any public record of how every lawmaker voted -- and many big decisions are made behind closed doors.

Democrats who hold supermajority margins in the House and Senate in recent years have embraced a centralized leadership style, concentrating power in the hands of the House speaker and Senate president and a handful of their preferred deputies.

Opponents of DiZoglio's audit-the-Legislature campaign contend that the Methuen Democrat is too personally involved to oversee a neutral review, and they warn that embracing a permanent change to her office's powers in state law could upset the separation of powers in state government.

Former Auditor Suzanne Bump, who preceded DiZoglio and has long argued the office does not have the power to probe the Legislature, told lawmakers on Tuesday that she sees her successor as pursuing "political goals."

"Indeed, politics is at the root of this initiative. Auditor DiZoglio, who's a former member of the House and Senate, uses her personal story of perceived political mistreatment by her former colleagues as a rationale for her efforts," Bump said. "Feeling excluded from prominent roles in the Legislature and unable to advance her policy goals -- which she discussed earlier today, including outlawing confidentiality agreements in cases of employee termination -- she's been a vocal critic of the Legislature for a number of years."

"She's entitled to do that. There may even be some validity to her criticisms," Bump added. "Her ardent advocacy, however, of her agenda renders implausible any claim to the legally required objective and non-ideological attitude of an auditor."

DiZoglio said she was clear during her campaign about her desire to audit the Legislature and is following through on what she sees as a mandate that voters gave her.

Rep. Michael Day suggested that voters already have recourse to address any concerns when all 200 legislative districts are up for reelection every two years.

"The transparency debate is one we have every two years at the ballot box. We do that at election time every two years," he said. "It's a debate that the Legislature itself has every two years after the election when we reorganize, bring in new reps and senators, vote on how do we organize, vote on the rules that govern us, how we're going to govern ourselves."

Most lawmakers typically cruise to reelection every two years without facing any challenges. In 2020, 125 incumbents were the only major-party candidates on the ballot; in 2022, that number was 108.

Legislative leaders also have not agreed on a permanent new package of joint rules governing House-Senate operations in years. For two straight lawmaking sessions, the branches have been operating under a previous iteration of rules after negotiators failed to reconcile differences between House and Senate proposals.

"A Blindsided Body Check"

The Democrat-controlled committee invited several academic experts to testify Tuesday about the proposal, and a pair of professors who answered the call pulled no punches in their commentary.

David King, a public policy lecturer at Harvard, described the ballot question as "a blindsided body check to this Legislature" that would represent an "unprecedented transfer of power into the executive branch."

"The Massachusetts separation of powers became foundational for this country's Constitution, and the auditor's gambit chips away at the foundation. I do believe it is that dire," King said. "The power to audit is the power to control."

And Jeremy Paul, a law professor at Northeastern, said he believes there's a "significant likelihood the Massachusetts courts will be forced to invalidate" the proposal as unconstitutional if voters enact it at the ballot box this fall.

"I submit that the power to audit may well turn out to be the power to destroy," Paul said. "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."

DiZoglio later complained that the two professors -- who issued their broadsides against her proposal during a section of the hearing reserved for invited outside experts rather than opponents or proponents -- were "cherry-picked."

Rep. Kenneth Gordon, a Bedford Democrat, said the testimony from King and Paul made him worried about "consolidation" of power in a single office.

"With all due respect to so-called experts, intelligent as they may be, I didn't see any state auditors up here," DiZoglio retorted. "The experts are the people who have been disenfranchised by this state Legislature, not the cherry-picked speakers that this committee invited to testify this morning for the purposes of political theater."

Gordon replied that he simply called Northeastern University and "asked for someone in the law school that knows constitutional law."

"I did not speak to anyone and ask that person not to speak," he said.

Day, a Stoneham Democrat who co-chairs the Judiciary Committee, posed a series of questions about the prospect of empowering an "unscrupulous auditor in the future" to embark on a punitive cycle of investigations -- what would stop that person, he asked, from launching a new audit immediately after receiving unsatisfactory answers to an existing audit?

DiZoglio replied, "The people of Massachusetts."

"If we're going to talk about abuse, that's what folks are concerned about in the Legislature right now regarding the refusal to comply with a basic performance audit by our office because we can't see as taxpayers if there is any abuse going on or waste or fraud," she said. 

Then, in an apparent reference to the three consecutive Massachusetts House speakers who faced charges, DiZoglio said, "Can you name any auditors that were indicted? Anybody?"

Her general counsel, Michael Leung-Tat, stressed that all of the office's audits under existing law must comply with generally accepted government auditing standards.

"It has to be within the scope of an audit," Leung-Tat, who told lawmakers he neither supports nor opposes the underlying ballot question, said. "The idea of unfettered, unlimited power is a misrepresentation."

A Constellation of Supporters

The question DiZoglio is pushing has drawn support from across the political spectrum, including progressive group Act on Mass and the right-leaning Massachusetts Fiscal Alliance, both of whom praised it at Tuesday's hearing. Former Rep. Dan Winslow, who served two terms in the House under former Speaker Robert DeLeo, also added his voice in support, as did Mary Connaughton of the Pioneer Institute.

Republican lawmakers on the committee hinted Tuesday that they were not entirely swayed by the arguments against the proposal, especially because DiZoglio and Leung-Tat said their office audits the state's judiciary system -- which like the Legislature is a separate branch of government -- with some regularity.

"What I'm trying to rectify in my mind is the idea that this is an infringement upon separation of powers with the Legislature, but then how that doesn't apply as well to the judiciary," said Republican Sen. Ryan Fattman.

House Democrats have raised questions about the auditor's work with the judiciary. In November, when House Counsel James Kennedy wrote to Campbell outlining concerns with DiZoglio's effort, he referenced a letter from the Trial Court's general counsel contending that an expansive performance audit of the Office of Jury Commissioner "violates the separation of powers."

While legislative leaders oppose being subjected to an audit by DiZoglio or her office, it's not clear if they will mount any formal campaign seeking to sway voters.

"We're less concerned about the fall than we are the charge of this committee, which is to examine every of the 10 questions that came before us and determine if there are real significant problems with them, both from a constitutional and a statutory perspective," Day told reporters after the hearing. "This one seems to have real problems constitutionally."

The committee's chairs said they plan to summarize their opinions in writing about each ballot question.

"We are going to put forth our opinion of what we've heard and what we believe to be true. The Legislature can then, based on Article 48, they can ignore it, they can take [it] up, they can file a bill, they can do anything, they can do nothing," Friedman said. "It really is out of our hands beyond that."

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