WRITTEN TESTIMONY OF
PROFESSOR JEROLD J. DUQUETTE, M.P.A, Ph.D.
THE SPECIAL JOINT COMMITTEE ON INITIATIVE PETITIONS
THE 194TH GENERAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS
MARCH 3, 2025
I would like to begin by thanking the committee for the opportunity to testify about this important issue and lest folks are wondering why a professor from Central Connecticut State is sticking his nose into Massachusetts’ politics, I will remind the committee that I am a Massachusetts native and current resident and have spent the past 25 years studying Massachusetts government and politics for a living. Nearly all of my published work over that time period is about Massachusetts government and politics.
Presently, I am teamed up with constitutional law scholar, Professor Lawrence Friedman of New England Law, who is widely considered to be the leading academic expert on the Massachusetts Constitution. Professor Friedman and I recently co-founded “The Massachusetts Law & Politics Project,” an effort inspired by what we see as the urgent need to bring academic expertise to bear on present efforts to misuse the Commonwealth’s initiative and referendum process governed by Article 48 of the state constitution, as well as the misinterpretation of the separation of powers attendant to that misuse that advances and encourages a dangerous misunderstanding of the legislature’s constitutional preeminence among the three branches of the state government.
The pending 2026 public records initiative petition we are examining today, then, is properly understood as a part of this ongoing effort, an effort initiated in the campaign to enact and enforce the 2024 legislative audit ballot initiative, that had as its stated goal…an increase in legislative transparency. Both initiative petitions then explicitly seek to affect an increase in legislative transparency, but I believe both initiatives to be part of a constitutionally defective effort to weaken the influence of legislative leaders over the legislative process, a political objective that clearly cannot be legally advanced or achieved by a ballot initiative. Moreover, achieving even the stated objectives of both of the aforementioned ballot initiatives clearly would require an amendment to the state constitution. Trying to alter the constitutional relationship between the legislative and executive branches of government without a constitutional amendment, threatens the integrity of the state constitution and public confidence in state government.
Just as the legislative audit would empower the Office of the State Auditor to require the involuntary cooperation of the General Court with comprehensive performance audits, the pending public records initiative (H 5004) would empower the Secretary of the Commonwealth to require the involuntary cooperation of the General Court with that office’s enforcement of the amended public records law. Therefore, the now large body of expert testimony and analysis regarding the separation of powers defects of the 2024 legislative audit initiative are also useful for clarifying the separation of powers defects of the pending public records initiative. It’s also important to note, that a meeting of qualified Massachusetts law and politics experts who have publicly endorse the separation of powers interpretation of the state auditor and other proponents of the public records initiative could be held in a phone booth…remember those…a reality that I’m sorry to say average MA voters would be hard pressed to appreciate with only the news media’s coverage of this constitutional standoff between the auditor and the legislature over the past three-plus years.
Defenders of the 2024 legislative audit initiative and the pending 2026 public records initiative have claimed that these measures merely give expression to the checks and balances described in and authorized by the state constitution. This understanding of constitutional checks and balances, however, dangerously confuses two related but distinct concepts, namely “Checks and Balances” and “Oversight” authority. Checks and balances are expressly distributed among all three branches of the state government in the state constitution, but oversight… is an implied power granted exclusively to the general court. There is no equivalent power granted to the executive branch, which is to say, contrary to the assumptions and explicit arguments of the leading proponent of the legislative audit and the public records initiatives there is no such thing as constitutionally authorized executive oversight of the legislature. On the other hand, the General Court’s constitutional obligation to ensure the “faithful execution of the law” gives them the power and responsibility to conduct oversight of the executive branch.
Let me provide a more specific illustration of my point here. When a governor exercises her constitutional authority to veto legislation she is employing a expressed constitutional power to check the will of the legislature that is balanced by the legislature’s constitutionally expressed power to override that veto as an expression of the will of the people that they -not the governor or any other executive officer- were elected to represent. No constitutional officer…not even the governor…can “check” the legislature in ways not explicitly authorized by the state constitution and balanced by an explicit constitutional power of the legislature to override such an action.
Therefore, neither the state auditor nor the Secretary of the Commonwealth, nor any other constitutional officer of the Commonwealth for that matter, can be granted the statutory authority to exercise oversight power…which is effectively superordinate power… over the legislature without an amendment to the constitution. A mere ballot initiative is not enough to change the constitutional relationship between the legislative and executive branches of state government in any meaningful way. By compromising the legislature’s constitutional preeminence, it’s place as the first among equals, as the actual representative part of our representative democracy, advocates for the public records ballot initiative are altering, not reinforcing, the constitution’s separation of powers.
The authority granted to the Office of the State Auditor by the enactment of the legislative audit ballot initiative in 2024—the authority to perform comprehensive performance audits of the state legislature without its consent—is a power not possessed by any statewide elected state auditor in the other 49 U.S. states. The same can be said of the power granted to the Office of the Secretary of the Commonwealth in the pending public records initiative petition. Both initiatives violate the separation of powers by interfering with the legislature’s exclusive constitutional authority to ensure the “faithful execution of the law.”
Even if the Commonwealth’s Supreme Judicial Court strikes down the state auditor’s legislative audit authority, and the 2026 public records law initiative is defeated at the polls in November, the fact that both had to be approved for inclusion on the state ballot because, despite clear constitutional defects, neither petition included disqualifying language or content explicitly prohibited by Article 48 of the state constitution illustrates the urgency of reforming the Article 48 ballot initiative process to prevent future efforts to misuse it.