As Mick Jagger so succinctly put it, “You can’t always get what you want.”
State Auditor Diana DiZoglio made her desire to audit the Massachusetts Legislature a cornerstone of her campaign for the auditor’s job, insisting with near missionary-like zeal that her authority extended to the legislative branch of government, its objections be damned.
Last week Attorney General Andrea Campbell delivered a hard no to the idea following an exhaustive look at records dating back to last century.
“After a thorough review of the statutory text, pertinent Supreme Judicial Court decisions, and relevant history, we have concluded that current law does not allow an audit of the Legislature over its objections,” she wrote in a letter to the auditor.
But Campbell went further, advising DiZoglio that “results of our research are sufficiently clear that litigation on this question is not necessary or appropriate.”
Now, it is not totally unprecedented for one branch of government to sue another. This ought not to be one of those times. As Campbell wrote, “as a steward of taxpayer resources, the Attorney General’s Office believes that the cost of such legal sparring among entities within the same state government would be better spent on the sound and efficient delivery of government services.”
DiZoglio, however, shows no signs of taking the hint. “I am grateful to the AG and her staff for their work on this matter but strongly disagree with their interpretation of the law,” she wrote on X. Her office declined further comment to the Globe editorial board, but she did tell State House News Service, “Short of a court order, our office will not be stopping our audit of the state Legislature. … We’re happy to have this conversation in court.”
There would be something odd indeed about the state officer in charge of ensuring sound financial management using her resources, and forcing other branches of government to use theirs, on such clearly frivolous litigation.
What DiZoglio can do instead is seek to change the law. Campbell has certified a ballot question being promoted by DiZoglio that could indeed give the auditor permission to audit the Legislature should it make it to the 2024 ballot.
But in her 17-page letter to DiZoglio, Campbell also warned, “Should the initiative become law, we may need to consider whether, and the extent to which, constitutional limitations affect how the law would apply.” In other words, even a successful ballot initiative many not give DiZoglio all the expansive powers she’s seeking.
As the auditor told the attorney general in her July letter looking for backup from Campbell’s office, the audit she wants to conduct would span all “accounts, programs, activities and functions” of the Legislature, including “active 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.”
But that would likely run up against a restriction more fundamental than any law — the separation of powers enshrined in the state constitution.
An attempt by the auditor to venture into, say, the inner workings of those conference committees used to iron out the final versions of nearly every piece of important legislation these days would “create profound constitutional questions,” according to one legal expert.
That’s not to say even a less expansive audit that would pass constitutional muster wouldn’t have any value. DiZoglio has tapped into a widespread public distrust for a Legislature that has shown an increasing penchant for doing the real work of governing behind closed doors — that and its blanket exemptions from public records and open meeting laws. The auditor cannot wave a magic wand and cure all of those ills, even if her ballot initiative is successful. But there is plenty out there already on the public record — payrolls, comptroller’s records of vendors paid, legislatively sanctioned financial audits — that might benefit from a fresh pair of eyes.
So “you can’t always get what you want,” but DiZoglio might ponder the rest of that Jagger wisdom that goes, “if you try sometimes, well, you just might find you get what you need.”
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