Click HERE for the CommonWealth Beacon story about Attorney General Andrea Campbell’s rejection of Auditor DiZoglio’s claim that her office has the legal authority to audit the legislature, with or without the legislature’s consent. Campbell’s analysis is entirely consistent with my earlier conclusion that DiZoglio’s push for legislative audit authority is a “well-intentioned bad idea.”
The reaction of the Auditor, as well as that one of the progressive activist groups who supports her present efforts, however, has given me some pause. In his reporting, CWB’s Bruce Mohl quoted the auditor as follows: In her social media posts on Friday, DiZoglio said she respected Campbell’s “right to her opinion and to defend the position of legislative leaders…” After the AG’s decision the group Act on Mass sent out an email to supporters that included a message about that decision that read in part as follows: While this decision is disappointing, it’s not entirely surprising; the possibility of Campbell squashing DiZoglio’s attempt to take the Legislature to court was the impetus behind the Auditor’s ballot petition in the first place. And it’s worth noting that Campbell was endorsed by both Speaker Mariano and President Spilka during her AG bid last year.
Both Auditor DiZoglio and Act on Mass are not so subtly suggesting that Attorney General Campbell’s “opinion” was impacted by electoral politics instead of the law. These suggestions are inappropriate and, frankly, shameful. The auditor is flatly and clearly wrong on both the limits of her statutory authority and on the constitutional barriers to the authority she seeks. The AGs letter to DiZoglio is very thorough, well-reasoned, and well-supported by the law. Frankly, though I wondered what was taking her so long, Campbell’s beautifully articulated conclusions were worth the wait. Far from caving to political pressure, the attorney general ignored what was undoubtedly considerable political pressure from progressive activists and did her job properly and well.
Campbell’s posture toward the auditor’s efforts has been exemplary in another way as well. She did not disqualify the proposed ballot initiative that would explicitly create the statutory authority sought by the auditor. Instead, she rightly allowed the measure to proceed knowing that its ultimate fate would be properly decided by the Supreme Judicial Court (i.e. the state supreme court). Allowing supporters of the legislative audit ballot initiative maximum opportunity to make their case to voters, despite the clear constitutional problems with the proposed measure, is exactly what the Massachusetts attorney-general is supposed to do in situations like this.
The framers of the state constitution’s Article 48, which describes and governs the process for ballot measures, charged the attorney general with ensuring that ballot initiatives do not include so-called “excluded matters” and that they do not violate particular constitutionally guaranteed individual rights. However, the AG is not authorized to consider more complex constitutional questions that might be implicated by the content of a proposed ballot initiative. In this case that means that the AG did not disqualify the legislative audit ballot initiative on the grounds that it violates the legislative supremacy and separation of powers concepts articulated in the state constitution, not because she doesn’t see these issues (I assume she does), but rather, because she understands that such complex constitutional issues can and should be decided by the Supreme Judicial Court, not by voters or elected officials.
In my opinion, allowing the legislative audit ballot initiative to move forward through the process for making the 2024 ballot reflects the AGs respect for both the public’s right to engage in valuable and robust public debate and for the integrity and proper authority of the Attorney-General’s office. Attorney-General Campbell’s conduct in this matter should serve as a valuable and praiseworthy example to all of her fellow constitutional officers, including the state auditor.