Democrats need to support DiZoglio’s audit of the Legislature

Tristan R. Brown

According to the Secretary of the Commonwealth’s Election Division, some 3,512,903 people came out to vote in 2024 — that’s about a 68.31% turnout. Of those voters, about 2,326,911 voted yes on a new law to give the state auditor the power to conduct audits of the “accounts, programs, activities, and functions” of the state Legislature. Only 924,289 voters disapproved.

The people have spoken decisively here. They want the state auditor — a constitutional officer that they elect — to have the authority to audit the Legislature, a body filled with people that they also elect. But, rather than cooperate with State Auditor Diana DiZoglio, leaders in the Statehouse, including Senate President Karen Spilka and House Speaker Ron Mariano, have refused to recognize the auditor’s democratic grant of authority. Instead, legislative leaders have claimed that such an audit would violate the “separation of powers,” which, as if some sacred decree, must not be violated lest we be visited by a series of divine plagues.

But, the concept of “separation of powers” is not actually holy scripture. It is just a concept — a political theory — which, like all others, derives its value from its practical utility.

In its modern form, the idea of “separation of powers” comes from the French Enlightenment philosopher, Chuck Montesquieu. In his seminal work, “The Spirit of Laws”, Montesquieu declared that all governments have three distinct powers — legislative, executive, and judicial — and that the joining of any two of these powers would result in a state where “there can be no liberty” or where public officials “might behave with violence and oppression.” He wrote: “There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers…” When the American revolutionaries set to drafting the Constitution, they modeled it on the Massachusetts Constitution, which employed Montesquieu’s concept of separation of powers to create three separate branches of government.

So, how does the empowerment of one elected official, say the state auditor, to have auditing oversight over another body, like the Legislature, violate the separation of powers? Did the people give the auditor the authority to make and execute law? Does the auditor have the authority to enforce the law and then act as the judge? It doesn’t seem that way to me. Instead, the law appears to be one that grants the state auditor oversight. When different branches of government exercise their legitimate authority over the others in an effort to check them, that doesn’t seem like a violation of the separation of powers to me. Seems like it’s the separation of powers is working as intended.

The authority given to the auditor is one of investigating and exposing facts about government for use by the electorate. This is a pretty important role for a modern government to have, given their complexity and the many ways to hide grift. It also wasn’t really a role government filled when Montesquieu theorized that every government possess three (and only three) distinct powers which need to be separated. I mean, there’s no magic to this.

There are three branches of government because that’s the constitution that the people of the commonwealth voted for, and the version we continue to live with. Similarly, the auditor has the power to audit the Legislature because the people added the office to the Constitution and then enacted a law that specifically gave her that power. Full stop.

Let’s not pretend that concerns about public corruption are overblown. We live in a time of remarkable corruption. On the federal level, there are examples like a Democratic senator being paid in gold bars to act on behalf of a foreign nation and a Republican president who committed a felony in a scheme to keep information about his alleged affairs from the American people before the 2016 election. On the state level, of the four speakers of the Massachusetts House before Mariano, two have pleaded guilty to charges, one was convicted, and the other was an “unindicted co-conspirator” in another case involving job trading.

Perhaps what Speaker Mariano, Senate President Spilka, and other opponents of this audit mean when they say “separation of powers” prevents compliance is that we need a new branch of government. Every program, agency, department, already answers to inspectors general, a number of different internal and external auditors, and an army of compliance professionals. Hasn’t experience shown that self-policing is not the most effective strategy? It’s almost like there are some powers being exercised by branches of government on their own that need to be separated into a co-equal branch of government. Maybe we can improve on Montesquieu in 2026 and add a fourth branch of government dedicated to exposing facts hidden by powerful political insiders and ensuring public access to information.

The people of this commonwealth deserve to have their will vindicated. Our representatives do us no justice by denying us our desired transparency. The people’s attorney — our attorney general — is not serving our interest by failing to bring suit against the Legislature. Now we will see if the Supreme Judicial Court has the wisdom to grant the people’s auditor the authority to pursue independent counsel to enforce the will of the voters. No matter what the outcome, is it the people of this commonwealth who rule. We, living today, are the deciders of things — not 300-year-old political theories. The people have decided they need more transparency from their elected officials. And we will not be denied.

Tristan R. Brown is an attorney from Peabody who writes about politics in his spare time. He is particularly interested in issues like democracy, the rule of law, and public corruption. You can reach him at thinkinaboutpolitics@ gmail.

com.