Audit of the Legislature

I often get questions about the proposal by the Auditor to “audit” the legislature, the ballot question that was approved by the voters in 2024 (Chapter 250 of the Acts of 2024).

Transparency of government has always been an important theme in my work, going all the way back to 2009 when I started a major previous conversation about legislative spending transparency with this web post.

I am 100% in support of financial transparency and integrity, as are all of my colleagues. In fact, the legislature is already independently audited.  The legislature does not have separate books of its own.  We use the same financial system that is used by the rest of the Commonwealth. The Commonwealth is routinely audited and further, we voluntarily subject our legislative accounts (within the Commonwealth’s books) to additional routine audits.  All of these independent and routine audits are published online, both the audited financial report of the entire Commonwealth (on a comprehensive basis; see also the unaudited statutory basis report) and the additional audits of legislative accounts.

That we are independently audited means that the integrity of our financial books has been independently verified.  But we go well beyond that.  We are not only audited, but we are financially transparent: Anyone can see online where every last dime was spent.  Spending transparency was an early crusade of mine in 2010 and 2011. I expended a lot of political capital to open the state’s books, earning myself a move to a tiny windowless office on the 5th floor, but we made real progress: In 2015 and 2016, the U.S. PIRG gave Massachusetts a straight A rating on financial transparency. U.S. PIRG’s 2018 comparison raised the bar and emphasized website usability features; in that version Massachusetts received a B- and ranked 17th among the 50 states.

I fought particularly hard to introduce competition into our procurement process. The legislature does make capital expenditures for its own operations. As a result of my efforts, legislative procurement rules (see, for example, Senate Rule 62B) now generally require use of the statewide public contracting system and otherwise require competitive procurements.

As to legislative process, every vote (floor or committee) and every bill, redraft, and amendment is tracked and published at malegislature.gov. And the fact that we are a full-time legislature as opposed to a 90-days-and-out legislature creates many more opportunities for input into the legislative process.  A commonly cited study from 2013 panned the Massachusetts legislature’s website and ranked it at the bottom, but the site has improved continuously since then and in 2018, Massachusetts won NCSL’s Online Democracy Award for having a superior legislative website. On a related metric, in a 2022 study on disclosure of lobbying activity, Massachusetts was ranked 27th. Massachusetts’ relative position among states depends on the ranking criteria chosen and we seek to continuously improve.

Finally, I make very substantial personal efforts — through this website, through email communications, and through community availability — to make my constituents aware of what I am working on and give them opportunities for guidance and feedback.  

Hearing all of the above, some constituents then say to me:

That’s great. I didn’t know all that. I am glad that you are transparent in so many ways. But why don’t you just allow an additional audit?

There are multiple reasons, but here are two of them: First, there is real uncertainty about the scope of the audit that the auditor seeks. Some of her early statements suggest that she envisions a broad, ongoing investigation of all aspects of how the legislature does its work, as opposed to any particularized set of accounts or issues. Moreover, she has refused to formally define the full scope of her audit. Second, even if scope were narrowed and clarified, many serious scholars believe that it is fundamentally inconsistent with the role of the legislature to be subjected to audit by any executive branch politician.

We took testimony on these and other issues in a lengthy hearing in April 2025. I have excerpted below the opening statement of Professor Lawrence Friedman. This testimony hits a few of the high points, but it represents only 9 minutes out of a three-hour hearing, in which many issues were deeply explored. You can listen to the full hearing here.

Transcript of Oral Testimony of Professor Lawrence Friedman before the Senate Rules Subcommittee on the Audit, April 2, 2025 (links and emphasis added)

Thank you for the opportunity to address some of the constitutional issues surrounding chapter 250 of the Acts of 2024 [the ballot question authorizing the auditor to audit the legislature] and to answer your questions. I would like in my opening remarks briefly to address some of these issues.

First, that the Attorney General allowed the audit initiative proposal to proceed to the November 2024 ballot is immaterial to the question whether it is constitutionally infirm. Article 48 authorizes the Attorney General to exclude proposals from the initiative petition process on several bases, none of which necessarily encompasses violations of the separation of powers or other structural constitutional defects. Indeed, as the website for the Attorney General’s office makes clear, petitions that appear on a ballot and are approved by voters could later be challenged in court and invalidated on those grounds. Here, the Attorney General concluded that the audit initiative proposal did not implicate any of the bases for exclusion from the ballot named in Article 48. Accordingly, in this case, this proposal could proceed to the ballot, notwithstanding that it might possess some other constitutional infirmity such as a separation of powers problem. Again, the fact that the Attorney General approved this to go to the voters does not mean that there were not other constitutional issues that could later be litigated, and I believe the Attorney General anticipated exactly that when she approved it.

Second, that the initiative proposal was approved by more than 70% of the voters who participated in the 2024 election is immaterial to the question whether it is constitutionally infirm. To understand why this is so, consider a hypothetical initiative proposal. As noted by the Attorney General, her office may not . . . decline to certify a petition that conflicts with a constitutional guarantee not mentioned in Amendment Article 48, such as due process or equal protection. Imagine a ballot initiative providing for increased penalties for left-handed people in case of motor vehicle violations. Though such a proposal raises a clear equal protection issue, the attorney general would allow it to proceed because equal protection is not a ground for disapproving a petition. The initiative passes with more than 70% of the electorate’s approval. When that equal protection issue is litigated after the law is enforced against a left-handed person, a reviewing court would not regard as relevant in determining whether the law violates the Constitution as applied the fact that the proposal enjoyed more than 70% support from the electorate. In short, the popularity of a proposal has no bearing on its constitutionality.

Chapter 250 of the Acts of 2024 violates the Massachusetts Constitution. It runs afoul of the constitutional provisions authorizing each house of the General Court to set its own rules and undermines basic separation of powers principles. As an initial matter, I note that the auditor’s belief that she can audit the General Court as if it were another unit of Massachusetts government is at odds with the Constitution’s structural framework. Simply put, the General Court is not another unit of Massachusetts government. Rather, the legislature is the source and the hub of all of the Commonwealth’s government for which the Constitution does not specifically provide. As stated in part two, article four, the scope of the General Court’s authority in this regard encompasses the full power and authority to do many things, including “to make, ordain, establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, instructions, either with penalties or without, so as the same be not repugnant or contrary to the Constitution as the legislature shall judge to be good for the welfare of the people of the commonwealth.”

I am sure you are all very familiar with the legislature’s purview. This is a substantial grant of authority. Neither the scope of authority assigned to any executive constitutional officer, nor the authority granted the judiciary is commensurate. Thus, while the Constitution separates and divides legislative, executive and judicial power among three constitutional departments, it may fairly be said that the general court is first among equals. It would be anomalous if an executive officer whose specific responsibilities and resources are not constitutionally defined and indeed whose budget and resources are set as a matter of legislative grace had the authority to subject the General Court to an audit as if it were just another executive agency.

More specifically, the Massachusetts Constitution expressly authorizes each house of the legislature to promulgate its own rules and manage its own proceedings as it sees fit. As you know, part two, chapter one, section two, article seven, authorizes the Senate to “choose its own president, appoint its own officers and determine its own rules of proceedings,” and the House enjoys similar authority. The Massachusetts Supreme Judicial Court has held that this authority is a continuous power, absolute and beyond the challenge of any other tribunal. It is difficult to see how an audit inquiry into any aspect of the ways . . . in which either house of the General Court chooses to conduct itself would not interfere even if minimally with the constitutional authority of each house to manage its own affairs.

In addition to undermining the express power of each house to enact its own governing rules, an audit of the legislature inevitably would intrude upon the deliberative space protected under Article 21, the Speech and Debate clause, which the Supreme Judicial Court has construed as reaching every act resulting from the nature and in the execution of the legislative office.

Next, in respect to separation of powers, the Supreme Judicial Court has long understood the Massachusetts constitutional scheme to preclude one department of government from interfering with the functions of another. An audit is at bottom, an investigation and the power to investigate the general court could threaten to undermine its basic functioning. As US Supreme Court Justice Robert Jackson warned in the context of criminal prosecutions, the power to investigate pursuant to, for example, auditing standards that the auditor herself chooses could lead to situations like those in which Justice Jackson said the prosecutor picks some person whom he dislikes or desires to embarrass or select some group of unpopular persons, and then looks for an offense. For there lies the greatest danger of abuse of prosecuting power. It is here that law enforcement becomes personal.

The potential for an audit to undermine the general court’s basic lawmaking functions exists, even if the auditor were to acknowledge that inquiries related to legislative deliberation are off limits. Former Judge Dan Winslow has argued that a line can be drawn between deliberative and administrative functions in the legislature, and that the auditor should have the authority to audit the latter. But even as Judge Winslow recognized, there exists a gray area between these functions that a court may not have the competence to clarify and which could compel a court, should it not view the case as raising a political question, to dictate to the legislature the limits of its own authority to determine how it should function. Even assuming some agreement about the administrative nature of a particular aspect of legislative functioning, there lies the possibility that an unscrupulous auditor would use the opportunity to audit these functions as a wedge with which to subject the general court to continuous audit requests and, should the legislature fail to respond to the auditor’s satisfaction, litigation over those requests, which ultimately could undermine the legislature’s ability to conduct its constitutionally assigned business on its own terms. Indirect interference with the general court’s functioning is no more constitutional than direct interference.

A final point. In respect to the assertion that because the general court has been subjected to audits in the past, the auditor has the authority to conduct her proposed current audit. As has been noted by others, there is evidence that these past audits, none of which was as comprehensive as what the auditor currently, seems to seek, were accomplished with the legislature’s permission, which consent the legislature is free to give. It remains, however, that one legislature cannot bind its successor. In other words, one legislature’s determination to diminish its constitutional authority by consenting to or cooperating with some form of audit, has no bearing on the authority of a subsequent legislature to do so. The general court no more than the judicial branch, the office of the governor, or the auditor herself cannot by its consent alter the constitutional boundaries of departmental authority.
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