THE ELECTION SEASON fight over legislative transparency could get a lot more cloudy before it gets any clearer.
Top Senate Democrats signaled Thursday they will seek a vote next week on legislation that would, like a bill passed last month in the House, subject both the governor’s office and the Legislature to some kind of public records framework, taking aim at the same topic already targeted by a question on the November ballot.
What Senate leaders did not say is how their legislative action would affect the ballot campaign, whose backers did not play a part in drafting either chamber’s language and have not agreed to suspend their efforts if Beacon Hill embraces its own records reforms different from what is set to go before voters.
Along the way, senators spurned a separate provision the House attached to its bill that would permanently curtail the scope of any legislative probe by the state auditor’s office. The controversial language will still be on the table in the eventual House-Senate negotiations, where it could either die quietly without making it into the final bill or win inclusion shortly before both branches whisk the package to Gov. Maura Healey.
Under new legislative rules for the term, lawmakers could choose to keep those talks going until after the election and advance their own changes at the very end of the term, regardless of what voters decide on the public records ballot question.
Got all that?
The Senate bill, which lawmakers unveiled Thursday and intend to debate on July 30, would treat the governor’s office and the Legislature differently when it comes to public access to their records. That’s roughly similar to the House’s approach, and different from the question transparency activists placed on the ballot, which would extend the existing law to Beacon Hill with only a handful of new exemptions.
In the Senate’s version, the governor’s office would need to comply with the same requirements to produce documents, emails, maps, and other work materials that most of the rest of the executive branch — plus municipal officials across Massachusetts — already face. The bill would create an extra exemption allowing the governor’s office to withhold any communication, memoranda, or documents that are related to “developing policy positions.”
For lawmakers, however, virtually all communications, including emails, would remain behind the curtain. The bill would create a new category dubbed “legislative record” listing what kinds of materials can be acquired from the House and Senate; it includes many items that are already publicly available on the Legislature’s website, like bill amendments and roll call votes, as well as other items such as job titles and salaries for staff.
The options for dissatisfied requesters are different based on the branch of government, too. Under the Senate bill, decisions by the governor’s office could be appealed to the secretary of state’s office, which oversees the existing records law framework, while any issues with attempting to acquire legislative records could be appealed to Suffolk Superior Court.
Senate President Karen Spilka called the records bill “a critical step forward in the Senate’s continuing practice of making the Legislature’s work more open and accessible to the people we serve.”
“By writing the Legislature and the Governor into the public records law, we are affirming that the people of Massachusetts have a right to clearly see our work and how their tax dollars are spent,” she said in a statement.
Neither branch’s top Democrats worked with proponents of the ballot question, who include top legislative foe and transparency firebrand Diana DiZoglio, while crafting their bills.
That creates an added layer of uncertainty. The initiative petition — which, again, envisions a different kind of legislative public records access — has already locked in a spot on the November 3 ballot as Question 1. Organizers so far have not signaled any desire to drop their campaign if lawmakers tackle the issue with their own proposal.
If the House and Senate act and the campaign does not back down, voters might be asked to weigh in on a question whose power has already been, or could soon be, altered or outright erased by final legislative action.
“Sounds like they’re trying to pass a makeshift version of something quickly to pitch to voters to try and convince them not to vote for ballot Question 1,” DiZoglio, the state auditor, said Thursday. “The voters are much too savvy for that, however.”
It’s not clear whether the House and Senate would take final action before or after the election. Gray Milkowski, a spokesperson for Spilka, said her team is “hopeful it gets to the Governor’s desk as soon as possible, but we’re not putting an artificial deadline on it.”
“As for the interplay between how the ballot question and the Senate bill would impact the public records law, I can’t offer a comment because it requires speculation,” he said in a statement. “However, the Senate President feels confident in the bill in front of the Senate and wants to see it become law.”
Scotia Hille, executive director of the progressive Act on Mass group that supports the ballot question, said she believes both the House and Senate proposals are designed to supersede any law voters might embrace this fall. Both versions of the bill include language declaring that the legislation “shall constitute the sole and exclusive remedy for obtaining access to records of the general court.”
“It’s clearly intended to, before a vote even takes place, undercut the will of the voters, and I think that will be extremely relevant come November,” said Hille, suggesting it could make voters even more supportive of the ballot question.
In Massachusetts, the governor’s office, Legislature, and judiciary are all explicitly exempt or consider themselves exempt from the public records law, making the Bay State a national outlier. The Legislature has been increasingly a target of frustration for its opacity and pace of work, especially as top Democrats continue to resist an audit by DiZoglio that voters supported in a landslide ballot question win two years ago.
Like the House did, Spilka’s office rolled out the announcement about the forthcoming vote with statements of support from the ACLU of Massachusetts, Common Cause Massachusetts, and the Massachusetts Newspaper Publishers Association. The Senate’s press release and the included quotes made no mention, however, of the ballot question — a contrast from the rollout of the House bill, in which each of those three groups explicitly suggested action in the Legislature is preferable to a ballot question.
The ACLU, Common Cause, and newspaper publishers landed in a political pickle as a result of the House’s bill. All three said they supported the records changes and only the records changes, declining to take an up or down stance on the significant reforms to the audit law the House wove into the same bill.

