McAnneny’s January Musings – Legislative Transparency Takes Center Stage in the New Year

A new year unfolds with so much promise.  It offers us all a fresh start, a clean slate, a reset.  It is a time for reviewing, reassessing and revising.   

For the Massachusetts Legislature, the beginning of the 194th General Court provides the perfect opportunity to rethink how the people’s business has been conducted in recent years and recommit to making their work more transparent. This recommittal should include allowing the auditor to audit the legislature. 

This notion of transparency has been a major focus since the legislature adjourned its formal sessions for 2024 on July 31st with many major bills still outstanding. These included a slew of healthcare-related bills that would provide more hospital oversight and reforms, additional oversight of the pharmaceutical industry and pharmacy benefit managers in Massachusetts, a long-term care bill, a substance use disorder bill and a maternal health bill. Other legislation important to the state’s fiscal and economic health lingered, including Governor Healey’s economic development plan, legislation to redirect interest generated by the state’s Stabilization Fund to secure federal more funding, and a supplemental budget to close out the books on Fiscal Year 2024.  

Even though many of these bills eventually were enacted during informal sessions, the fact that 20 percent of the term’s legislation passed in the last two days of the session opened the legislature to widespread criticism for not abiding by its own session rules, not bringing more urgency to their work and leaving so much of it to the final days of the two-year session. In an unusual show of solidarity, both liberal and conservative groups faulted the legislature for what it did and didn’t do. Traditional and social media were ablaze with criticism of the legislature’s inefficiency and opaqueness. Even national organizations weighed in, with FiscalNote ranking Massachusetts the least efficient legislature in the country. 

That criticism seems to have struck a nerve with the speaker and Senate president, who both referred to it in their opening remarks for the legislative session that convened this week.  Both pledged to make the legislature more transparent.   

I could not agree more with the need for more transparency.  As Patrick Henry once said, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” 

Speaker Mariano criticized the negative media coverage while also vowing to consider several changes to the legislative calendar designed to restore public confidence in the legislative process.  He stated, “It is our responsibility to ensure that voters feel that they have an efficient and transparent legislature that is responsive to their concerns.” 

In a similar vein, Senate President Spilka criticized the media coverage as fractured and distorted while also proposing a number of rule changes to make the flow of legislative work more efficient and transparent in order to “get people the information of what we’re accomplishing as a Senate, as a legislature that is not getting out as well as we all want it to in the Senate.” Among Spilka’s reforms are posting summaries of all bills released by the Senate Ways and Means Committee, opening conference committee negotiations to the public and advancing the date by which committees must report on bills to allow for a longer period of deliberation. 

One way for the legislature to regain the public’s trust is to accept the voter’s overwhelming approval of Question 1, the ballot initiative that gave the state auditor explicit authority to audit the legislature.  This proposal was supported by 71.6 percent of voters or 2,327,764 individuals, making it one of the most popular initiatives ever on the ballot.    

Media criticism of the legislature’s conduct likely fueled support for this proposal.  Even though the speaker and Senate president think that criticism is unjustified, it is crucial that they abide by the public sentiment it expressed.  Question 1 passed in every single municipality in Massachusetts, signaling that communities of different political persuasions and socio-economic standing throughout the Commonwealth think the Massachusetts Legislature needs to be more transparent.  

Now that the petition giving the auditor explicit authority to audit the legislature has become law, Legislative leaders have cited separation of powers concerns as a reason to potentially amend it.  While it will ultimately be up to the Supreme Judicial Court to decide the constitutionality of this matter, one example of a separation of powers issue that surfaced in the run up to election day is the auditor’s ability to compel the legislature to create or produce documents under the initiative petition’s provisions. Some scholars have argued that such power amounts to executive interference in the work of the legislature and thus may be considered prima facie unconstitutional.  Per the Center for State Policy Analysis, votes, debates, committee assignments, policy priorities are all “core legislative functions” that the Massachusetts auditor will not be able to examine even if Question 1 passes. Non-core legislative activities that might be subject to audit include compliance with employee training rules, cybersecurity norms, and purchasing practices. In other states that have investigated such non-core activities, the auditor has relied on cooperation from legislators.  

These separation of powers concerns may be valid, but they should not jettison the idea that the auditor can audit the legislature.  Rather than the auditor compelling documentation, the legislature can provide it voluntarily, as has been the case with many other state legislatures.  This will have two important impacts.  First and foremost, this important check and balance will shed light on how the legislature conducts both its internal business and matters that affect the public. This will better position the media to report fully on legislative actions, thereby addressing legislative leaders’ concern about distorted or incomplete media reporting. It will have the added effect of giving the public more opportunity to provide input into important policy decision-making. Equally important, it will rebuild public trust that the legislature is acting in the best interests of Massachusetts residents. 

After all, the State Auditor’s Office (SAO) is a creature of the legislature.  In forming the SAO, the legislature recognized the important function the SAO plays in providing” the public and government decision makers with independent evaluation of the various agencies, activities and programs operated by the Commonwealth.”1 In response to the recent barrage of criticism, now would be good time for the legislature to reassert its commitment to the important work of the SAO to and to renew public trust in lawmakers and state government.  In addition to implementing the reforms outlined by legislative leaders for the new legislative session, consenting to an audit by the state auditor would be a giant step forward in making the legislature more transparent.  

Let’s hope legislative leaders make good on these new session resolutions.