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

MASSACHUSETTS VOTERS SPOKE clearly in passing a 2024 ballot question: The state auditor should have authority to audit the Legislature. The House’s response last week was not to honor that mandate, but to narrow it, control it, and try to place disputes beyond the reach of the courts.

The bill passed by the House allows only a limited audit of four categories: legislative budgets, official audits, a list of spending transactions, and a list of monetary settlement agreements, generally beginning with fiscal year 2021. That is far narrower than the voter-approved law, which authorized the auditor to examine the Legislature’s “accounts, programs, activities and functions.” Lists of expenditures without supporting documentation are all but meaningless in an audit.

Wouldn’t it make sense to give the auditor access to key documents to support expenditures like invoices, credit card receipts, and settlement agreements? Also, why shouldn’t the auditor have access to documents provided by lobbyists that became the basis for legislation?

Perhaps more troubling, if the Legislature refuses to cooperate, the House bill reduces the auditor’s remedy to little more than a complaint in a final audit report. And as the icing on the cake, it bars courts from compelling records, enforcing interview requests, or resolving audit disputes.

That is a remarkable assertion of legislative privilege. It is acting as judge and jury in its own case. The Legislature is not simply arguing that parts of the voter-approved law may raise constitutional concerns regarding the separation of powers. It is asserting that only it has the power to answer those questions—and then prevent the judiciary from reviewing its decision.

Ironically, in citing such concerns, the House does violence to the bedrock American doctrine of judicial review. The 1803 case of Marbury v. Madison is the foundational US Supreme Court case that cemented the judiciary as an equal, independent branch of government with the authority to invalidate laws that conflict with the Constitution. That doctrine has been applied in every state, including Massachusetts. Now the House purports to exclude the courts from any meaningful role in assessing the validity of the Legislature’s compliance with a law passed by the voters.

That should alarm anyone who cares about accountable government. In our constitutional system, courts exist to decide legal disputes, including disputes over the constitutionality of laws. A Legislature may pass statutes, but it should not be able to declare its own actions immune from judicial review.

The timing makes the move all much worse. The constitutionality and enforcement of the audit law are already before the Supreme Judicial Court. Rather than allow that process to unfold, the House has advanced legislation that appears designed to restrict the auditor, narrow the voter mandate, and preempt meaningful court review.

In a further effort to defuse public pressure for legislative records to be treated like those of other state and local governments, the legislation created a process through which certain legislative records may be requested. The weakness of this approach is that many of the records covered by the new process are already publicly available. Whether these provisions were intended to blunt support for a November ballot question that would make legislative records subject to public records law is unclear. However, that conclusion is difficult to dismiss, particularly because the bill also extends public records requirements to the governor’s office, another central component of the ballot measure.

This bill is not transparency. It is a legislative workaround dressed up as reform.

The vast majority of the voting public chose independent oversight. Support for the auditor’s initiative has only grown since then. The House’s bill limits the audit, protects the institution being audited, and bars the door on the courts. That is not how checks and balances are supposed to work.

Jim Stergios is executive director of the Pioneer Institute. Mary Connaughton is Pioneer’s chief operating officer and director of government transparency.