Question One, which was passed on the 2024 Massachusetts statewide ballot by a wide margin, amended the state auditor’s authorizing statute. The amendment explicitly makes the state legislature itself subject to the auditor’s existing authority in exactly the same manner as are all the administrative departments, offices, commissions, and authorities of the Commonwealth’s government. Instead of crafting a ballot initiative that limited the auditor’s sought for authority to non-legislative activities, a route that would have at least had the virtue of being mindful of the fundamental state constitutional principles of legislative supremacy and separation of powers, Auditor DiZoglio chose instead to publicly insist that she was already authorized to treat the state legislature just like every other government entity she audits and to claim that Question One merely sought to clarify her existing authority.
DiZoglio has stubbornly maintained this bold, but legally, logically, and historically absurd, stance since taking office in 2023, in part no doubt because it allows her to generate political attention and support by demonizing an easy target, Beacon Hill. In her enthusiastic attacks on Beacon Hill “politics-as-usual” during the run up to Election Day this year, DiZoglio’s willful ignorance frequently caused her to contradict herself and to make demonstrably false claims in her campaign for “Yes on One.” The Auditor’s endgame seems to have always been getting her case in front of the Supreme Judicial Court (SJC) with the hope that the justices would do the dirty work for her.
The constitutional reality, openly acknowledged by many of DiZoglio’s supporters as well as both journalists and subject matter experts, is that the only legislative audit authority that might conceivably pass constitutional muster would be the statutory authority to audit “non-core” legislative activity, which is to say, administrative activity performed by employees housed in the legislative branch. If the SJC did actually uphold such authority in this case they would be giving the Massachusetts State Auditor authority that no other state auditor in America has or has ever had. Though not an attorney (or an auditor for that matter) DiZoglio surely understands why every legal expert who has considered the matter (as well as her two immediate predecessors) has made clear that the state auditor cannot legally audit legislative performance without the consent of the legislature. Pretending otherwise in order to sustain high profile antagonism between herself and the legislature is likely intended to help progressive activists scare Beacon Hill into being more responsive to their agendas. What she clearly does not realize, however, is that her efforts, if successful, would actually empower rightwing anti-tax advocates and culture warriors more than progressives. In effect then, DiZoglio’s “ends justify the means” approach is entirely self-defeating and amounts to illegitimate means that will end up in the long run justifying her ideological opponents’ ends.
The SJC should strike down DiZoglio’s voter-enacted politicization of the state auditor’s office lock, stock, and barrel. Preserving the narrowly tailored authority described above would reward the dishonest campaign of Question One advocates and encourage future abuse of the ballot initiative process as a way to get around politically inconvenient constitutional principles. Scrutiny of the 1917 state constitutional convention debates about the creation of the Commonwealth’s initiative and referenda process makes clear that the state’s judges were invested by the framers of Article 48 with the solemn and sole responsibility of defending the most essential principles of the state constitution from both politicians (including the attorney general) AND voters.
Massachusetts government and politics have proven quite resistant to the polarized partisan madness and executive branch overreach that has helped distort American democracy at the national level. The exceptional durability of constitutionally mandated legislative supremacy in the Bay State, a dynamic preserved in part by vigilant enforcement of the state constitution’s separation of powers principle, is one of the Commonwealth’s surest protections against the type of unconstitutional executive overreach implicit in the state auditor’s ill-conceived legislative audit crusade. Progressives may like it when the overreach is for progressive purposes, but they ought to stop and think instead about the very good reasons why there is no such thing in American constitutional democracy as a “People’s Auditor.” We need only monitor the efforts of the new Trump Administration in Washington over the next four years to be reminded of what can go wrong when demagogic elected executives claim mandates from “The People” to justify circumventing the folks the American constitutions designate as the proper elected representatives of the people.
If the legislature allows the fate of Question One to be decided by the state’s highest court, every political scientist and constitutional scholar in the Commonwealth should submit an amicus curiae brief imploring the SJC to protect legislative supremacy at the Massachusetts state house by protecting the integrity of the state constitution’s ballot initiative process and separation of powers doctrine from short-sighted activists of every ideological persuasion who are willing to throw the constitutional baby out with the dirty legislative bath water.