STATE AUDITOR Diana DiZoglio’s proposed ballot initiative to expressly empower her office to audit the Legislature is supported by a vast majority of Massachusetts voters who have an opinion on the issue. If the auditor succeeds in collecting the additional voter signatures required to place the issue on the upcoming state election ballot, does anyone seriously doubt that voters will choose to require more transparency and accountability from their elected representatives and senators?

If the statute to expressly empower the auditor to audit the Legislature is approved by the voters, the new law will likely face a constitutional question about a violation of the separation of powers. The constitutional concept of separation of powers ensures that no branch of government becomes too powerful at the expense of the others. However, the Legislature’s separation of powers concern here is at tension with the auditor’s mandate to provide checks and balances against the legislative branch.

The constitutional reach and limits of the auditor’s powers are far more nuanced than the old fashioned “power grab” accusation lobbed against the auditor by a Harvard faculty member in a recent public hearing. Instead, the Massachusetts Supreme Judicial Court has specifically held that the three branches of government are not “watertight” silos of authority. The US Supreme Court similarly held that the Constitution does not require a hardline distinction between the powers of the branches.

The Supreme Court has noted that “the proper inquiry focuses on the extent to which [an act of one branch] prevents the [other branch] from accomplishing its constitutionally assigned functions.” In a nutshell, the line between “separation of powers” and “checks and balances” principles depends on whether the function the auditor seeks to audit is a “core legislative” function or “administrative” function of the Legislature.

A core legislative function is one that is unique to the legislative branch, such as the power to enact legislation or the power to create a state budget. Core legislative functions generally impact a wide segment of the Commonwealth’s population.

By contrast, administrative functions are not unique to the legislative branch and usually involve relatively few people, such as employee claims and settlements, credit card spending controls, and the like. Applying this functional test, even if the new law is approved by voters, the auditor will lack the constitutional authority to intrude on core legislative functions but will have the express statutory and constitutional authority to audit the administrative functions of the General Court, the formal name of the Legislature.

A constitutional gray area exists between these two functions, which likely will require the intervention of the Supreme Judicial Court. Can the auditor audit core legislative functions from prior sittings of the General Court? Auditor DiZoglio may assert that she does have that power and, unless the Supreme Judicial Court rules otherwise, the court has held that independent constitutional officers may act contrary to the interest of other constitutional officers in the executive branch, so long as they have authority over that issue.

It’s an open question, for example, whether the auditor can review legislative committee records from 2020 to determine whether committees ever met to deliberate following public hearings and which committee member voted to support or oppose the proposal.

Ironically, this gray area creates an opportunity for the Legislature to approve the auditor’s ballot question by substituting a more comprehensive transparency act that provides statutory guidelines for what the Legislature considers to be a core legislative or administrative function. Any subsequent judicial review would be deferential to the Legislature’s own view of its core role and prerogatives. And transparency legislation would be a good idea in any event.

Voters who approve the ballot may not know that they live under one of the least transparent state governments in the country, but they will all agree that bringing transparency to the Legislature would improve the public perception and accountability of the exceptional work of elected representatives.

The auditor’s long arm has reach but its length is limited by the Constitution.

Dan Winslow is president of the New England Legal Foundation, which advocates for free enterprise, rule of law, and inclusive growth in the Northeast. Vincent Gritzuk is the Faberman Fellow at the foundation and a second-year student at Boston College Law School.