The golden dome of the State House. (Photo by Andy Metzger) field_54b3f951675b3

LEGISLATIVE ATTEMPTS TO fend off transparency initiatives in the wake of a 2024 state ballot initiative in which 72 percent of voters supported allowing the state auditor to audit the Legislature just grow stranger and stranger.

The state auditor has sued the Legislature to compel their cooperation with the audit, but the case was sidetracked when state Attorney General Andrea Campbell decided that she would neither represent Auditor Diana DiZoglio nor appoint counsel to represent the auditor’s office. Campbell caved after a recent hearing in which it became clear that Massachusetts’ Supreme Judicial Court would direct Campbell to appoint counsel for the auditor.

Seeing that things were not moving in their direction and hoping to head off the auditor’s lawsuit, the House passed a last-minute bill that House Speaker Ron Mariano said would “increase access to public records from the executive and legislative branches and establish a clear framework for legislative audits.”

That would not be how we would describe the bill.

When it comes to complying with the will of the voters as expressed by the 2024 ballot initiative, the legislation would limit what the auditor can ask for to 17 categories that include daily legislative calendars, each chamber’s budget and copies of the annual audit the Legislature already conducts. That audit is essentially an opinion on just two things: what the Legislature could spend and what it did spend—with no detail. Most of the information the auditor would have access to is already public.

That, comparatively speaking, is the good news. The bill would bar judicial review should the auditor be denied any of the records she requests.

In a statement, Mariano said “We hope this legislation will put an end to protracted litigation…”

Every first-year law student who has read Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison knows that the courts have the sole power to determine what is constitutional — even if it be via “protracted litigation.”

Massachusetts is the only state in which the Legislature, governor’s office and judiciary all claim to be exempt from the state public records law. With that status under threat from another initiative slated to appear on the statewide ballot this November, which would make the Legislature and governor’s office both subject to the existing records law, the House legislation attempts to defuse the effort by making the governor’s office subject to the law, which is administered by the secretary of state’s office.

But the bill takes a very different view for legislative records requests, creating a process controlled by the House and Senate. Requests would be submitted in writing to a new “presiding officer” of each body, who would have 60 days to either produce the records or explain why they can’t be made available.

The real kicker is the appeals process. Under the current process, the secretary of state’s office provides at least a somewhat independent entity to handle appeals. Under the House bill, appeals of legislative records requests would be resolved by… the Legislature. More specifically, the House Rules Committee.

The supposed transparency bill didn’t take a very transparent route to approval. According to Rep. Todd Smola, the ranking Republican on House Ways and Means, committee members received the legislation 34 minutes before they were asked to vote on it. The full House voted on it 24 hours after members received copies.

As state Representative Mike Connolly of Cambridge, one of three Democrats who voted against the legislation, told the State House News Service, “The headline almost writes itself… ‘Legislature passes transparency bill out of cover of darkness.’”

The Massachusetts House of Representatives’ “Act Promoting Transparency and Public Access in State Government” would do neither. A poll commissioned earlier this year by Pioneer Institute and conducted by Opinion Diagnostics found that the Massachusetts Legislature has a 28 percent favorability rating.

With its attempt to exert legislative power over the prerogative of the judiciary and bid to bypass the expressed will of the voters, the bill is an excellent example of just why the Legislature is so unpopular.

Frank Bailey is president of the Pioneer Public Interest Law Center. Mary Connaughton is director of transparency at Pioneer Institute, a Boston-based think tank.