What to know about Question 1 on the Mass. ballot

When Massachusetts residents head to the polls this fall, they will be asked to weigh in on five statewide ballot questions, the most to be put in front of voters since 2000. They concern MCAS graduation requirements, the possible unionization of rideshare drivers, the legalization of some psychedelics, and increasing the minimum wage for tipped workers. 

But Question 1 is all about whether or not the Office of the State Auditor has the power to conduct an audit of the state Legislature. The current auditor, Diana DiZoglio, has been pushing for an audit of the Legislature since before taking office in 2023. Lawmakers have been generally resistant. Here’s a guide to every major aspect of Question 1. 

What would Question 1 do?

If passed, the state auditor would be given the express authorization to audit the Massachusetts Legislature. Current laws give the auditor the power to examine “all departments, offices, commissions, institutions and activities of the commonwealth,” and this question explicitly adds the Legislature to the list. 

Although many associate the idea of an auditor with evaluations of financial record-keeping, the state auditor’s office is primarily meant to ensure state agencies follow existing laws and regulations and to evaluate their performance based on criteria set by the Government Accountability Office. The position was created within the Executive Branch to help monitor the actions of the governor and executive agencies. The auditor can ask to access a variety of records and documents, backed up by the threat of court enforcement for noncompliance. 

But, with nonexecutive agencies, the auditor relies on the consent of the groups being audited rather than any threat of compulsion, according to a study of Question 1 conducted by The Center for State Policy Analysis at Tufts University. Municipal governments and some state courts have complied with audits in the past. 

The Tufts study is meant to educate voters, and does not take a position on the question one way or the other. 

Question 1 would, if approved, open up legislative activities like compliance with employee training rules, cybersecurity practices, and purchasing policies to an audit, according to the Tufts study. Other activities, like votes, debates, committee assignments, and policy priorities would still remain blocked from an audit even if Question 1 passes. 

A “yes” vote would set up a “test of the auditor’s new authority,” the Tufts study concluded. DiZoglio would likely pursue a type of audit removed from the Legislature’s core powers and more likely to be viewed favorably by a court. 

Legislative leaders would have four choices: accept the auditor’s authority and comply, reject her authority and agree to comply voluntarily, reject her authority and refuse to comply, or completely ignore the request. Refusing to comply or ignoring the request altogether would likely result in the issue being taken to court. In the meantime, the Legislature could pass a bill overturning Question 1 or stipulate that funding to the auditor’s office cannot be used for legislative audits. 

The case in favor of Question 1

Proponents in favor of passing Question 1 are centering their argument on the inefficiency of the Legislature. Lawmakers faced criticism from many sides this summer after leaving multiple bills on the table at the end of formal sessions. The dysfunction has gotten worse in recent years, advocates say. 

“Government is not supposed to operate the way the Massachusetts Legislature is operating right now,” DiZoglio told The Boston Globe in August after the formal sessions ended. 

Crises of housing affordability, health care, transportation, and more need decisive action from the Legislature, proponents of Question 1 say. Instead, closed-door discussions are common and key constituencies are kept in the dark as legislation is created and debated, they say.

The Massachusetts Legislature is “continuously ranked as one of the least effective, least transparent legislatures in America,” and it is one of just four state legislatures that exempts itself from public records laws, according to proponents. Their hope is to increase public scrutiny of how taxpayer dollars are spent and potentially precipitate a wider culture shift toward how lawmakers do their jobs. DiZoglio has said that outside pressure could force changes from within. 

“At the very least, this would send a message about public frustration with the status quo and potentially increase pressure for change,” the authors of the Tufts study wrote in their report. 

The Legislature, the courts, and the auditor would likely engage in a process of “institutional negotiation” and be forced to draw clearer lines around the limits of autonomy and oversight. 

The Editorial Board of The Boston Globe officially endorsed the passage of Question 1, writing that the Legislature has avoided public scrutiny for too long and that its credibility has taken a hit because of this.

“It isn’t a magic wand. But it sure wouldn’t hurt to shine a little light in at least some of those dark corners the Legislature has created for itself,” the Editorial Board wrote.

The case against Question 1

The key arguments against Question 1 were outlined in a majority report by the Special Joint Committee on Initiative Petitions. This group is composed of three state senators and three state representatives. It was compiled after hearing testimony from both sides. It concluded that the passage of Question 1 would undermine the separation of powers between the branches of government. The report quotes testimony from David King, a professor at the Harvard Kennedy School. 

“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,” King said. 

The argument is rooted in the fact that the auditor’s office is housed in the Executive Branch of the state government. Lawmakers are empowered by the voters who elect them and held accountable by those same constituents. 

“Essentially, the Auditor would supplant the people for herself in holding the Legislature accountable,” the lawmakers wrote in their majority report.

When asked about concerns regarding the separation of powers, DiZoglio argued that her office is not seeking to interfere with “core legislative functions,” but is simply aiming to report on what has already occurred. She compared this work to what is done by public service journalists, acting as a messenger for information to reach the public.

DiZoglio emphasized that her office does not have the power to enforce anything; it can only uncover information, report on it, and make recommendations.

Without the consent of the Legislature, which appears unlikely, the auditor would probably find difficulty in investigating lawmakers. Even if the fight ends in a new court ruling, the very nature of the auditor’s role could be changed. 

“The office could shift from being a quietly valuable but low-profile position to an increasingly politicized and newly potent one, able to use the threat of audits to influence legislative behavior,” the authors of the Tufts report wrote. 

Notably, former State Auditor Suzanne Bump has come out against Question 1. In testimony to the Special Joint Committee on Initiative Petitions, Bump said that government audits should be focused on programs authorized by the Legislature to serve the public, not the functions of the legislative branch of government itself. 

Any audit of the Legislature would “be inherently subjective and thus inconsistent with well-established auditing standards,” the lawmakers wrote. They also drew attention to the fact that DiZoglio was recently a member of the Legislature herself, and therefore lacks objectivity. 

More background information

DiZoglio has been pressing for an audit of the Legislature even before being elected, making it a key priority as she campaigned. In March 2023, she announced a “performance audit” and sent formal requests for documents to Speaker of the House Ron Mariano and Senate President Karen Spilka. Both Mariano and Spilka refused to comply. 

DiZoglio said that summer that she would pursue litigation against the Legislature. But such a move requires approval from Attorney General Andrea Campbell’s office. Campbell determined later in 2023 that DiZoglio lacks the legal authority to conduct such an audit and found no historical precedent for the type of audit she was seeking. She said that the litigation DiZoglio was pursuing was “not necessary or appropriate.”

Campbell did allow Question 1 to make it onto this year’s ballot, but warned that constitutional limitations could affect how the ballot proposal would be applied if passed. 

DiZoglio said that she is focused on getting Question 1 approved in November, not about the potential limits that her office could run into.

She said that she and her staff have uncovered at least 117 instances of the Legislature being audited since the state auditor’s office was created in 1849. This stopped occurring in the early 1990s, she said.

Historical context for the Legislature’s current aversion to being audited can be traced back to a feud between former Auditor Joe DeNucci and former Speaker Charles Flaherty, as outlined in the Globe’s endorsement.

“This is not something new. We are trying to restore a practice that had been stopped by some folks in power who believed that they should no longer have to comply, and we’re giving people the opportunity to voice their opinion about that on the November ballot,” DiZoglio told Boston.com

The authors of the Tufts report looked for precedents in other states. Some state auditors have successfully audited some legislative activities, but have not examined votes, amendments, or committee operations. The audits in other states have focused on “routine” internal operations like employee training or procurement practices. 

Legislative audits are “smoother” and more common in states where the auditor is appointed by the Legislature. This is not the case in Massachusetts. The authors of the Tufts report said that they did not find any examples of auditors who successfully completed legislative audits while being actively opposed by lawmakers. 

DiZoglio argues that elected auditors have greater independence than those appointed by lawmakers. The Massachusetts office was formulated in the way that it was because of the need for independence and accountability, she said.

The bottom line

If Question 1 passes, DiZoglio’s office would be able to audit some non-core functions of the Legislature, but many other aspects would still be blocked from examination. There is the possibility that the issue heads to court, where rulings could bring more attention to the efficacy and transparency of the Legislature. This process could also significantly empower or politicize the auditor’s office. 

If Question 1 fails, the status quo is maintained. The auditor would still be limited to reviewing executive agencies and needing permission to look into legislative or judicial actions.