DiZoglio makes clear it’s not over until it’s over. (via Twitter/@DianaDiZoglio)

To fulfill a campaign promise, Massachusetts State Auditor Diana DiZoglio will have to go to voters to change the law. Fellow statewider, Attorney General Andrea Campbell, announced Friday that existing law does not authorize an audit of the legislature, a key plank of DiZoglio’s platform when she sought to succeed Suzanne Bump, who did not seek reelection.

Both the House and Senate waved off DiZoglio’s early request for materials, prompting her to subpoena. Enforcing it requires judicial action. Usually, only the attorney general represents the state—or at least the executive which includes the auditor—in court. However, when the state entity is a plaintiff, the AG’s approval is necessary to advance the suit. Without that, said state organ cannot go into court.

“I believe transparency is a cornerstone of good government, but that transparency must be achieved through methods that are consistent with the law,” Campbell said in a statement, noting that she must work within existing laws.

“After a thorough review of the statutory text, pertinent Supreme Judicial Court decisions, and relevant history, we have concluded that current law does not allow an audit of the Legislature over its objection,” Campbell continued.

Campbell did not block a ballot question that would allow DiZoglio’s office to audit the legislature. The release noted the Attorney General’s office greenlit that measure. It cautioned that today’s today “should not be interpreted” as a sign of how the AGO the initiative if it becomes law. Yet, her letter implied the initiative could correct statutory defects in DiZoglio’s argument but still face constitutional issues.

DiZoglio, writing on her personal/campaign Twitter account, thanked Campbell for her work but “strongly” disagreed with her determination.

While respecting Campbell’s position, DiZoglio countered, “a question of statutory interpretation on a matter of such importance to taxpayers, is best answered by the courts, not the executive department of government.”

The legislature’s opacity, she went on, “reinforces the status quo that benefits powerful insiders while leaving working people in dark.” She said would still pursue a legislative audit along with the ballot question that would give her the power to do so.

When DiZoglio announced her plans in March, she called for a broad performance audit. It would touch multiple legislative activities, including appointments, legislative decision-making and personnel management.

The auditor’s quest has roots dating to before she ever held office. After signing a nondisclosure agreement arising from her time as an employee of the state House, she won a seat herself. In a speech on the House floor, cloaked in legislative immunity, she broke the agreement to reveal how leadership had forced her into silence.

She would move on to the Senate before running for auditor in 2022.

DiZoglio’s campaign for Auditor had a populist inflection, targeting sclerotic state government. The legislature topped the audit list. Critics derided her as unrealistic. Bump questioned the audit and endorsed DiZoglio’s rival in the primary. Still, DiZoglio powered through the Democratic primary before flattening her Republican opponent in the general. (Bump endorsed her in the general).

Upon taking office, DiZoglio began attempting her audit. House Speaker Ron Mariano and Karen Spilka politely advised where the auditor could put her probe. DiZoglio turned to Campbell. At a July press conference, she surrounded herself with bound volumes of past audits. These, she said, were evidence of her ability to audit legislature, DiZoglio asserted the law was on her side. Delegates at the state convention gave her rockstar’s reception as she offered a full-throated defense of her audit.

In the end, the AG disagreed.

In her 17-page letter to DiZoglio, Campbell stated that her office conducted and exhaustive review. However, her staff found the auditor’s request lacking a basis in law.

“We have evaluated your arguments in that role [as attorney general], objectively analyzing the relevant law. We comprehensively reviewed the statute governing the SAO, the history of that statute, records reflecting the SAO’s historical position on this issue, and the constitutional provisions implicated by your request,” Campbell wrote. “After careful analysis of these materials, and as explained at length below, we conclude that the SAO does not currently have the legal authority to audit the Legislature without the Legislature’s consent.”

The letter, citing a 1931 Supreme Judicial Court case, observes that statutorily the “departments” the auditor can reviews does not include “the three grand departments.” That is, the three branches of government, except those departments within the executive branch. Historical precedent also limits “departments” to those under the executive, Campbell argues.

However, the most significant argument Campbell makes is that the evidence DiZoglio mustered was inapplicable. Past audits of the legislature included financial reviews that the comptroller now does. Others were not nearly as sweeping as what she seeks.

Campbell (and her office) alone had the power to haul the legislature into court…or not. (WMP&I)

Moreover, Campbell notes, “historical precedent indicates that the type of audit now proposed has not previously been performed, and prior State Auditors did not believe the [auditor’s office] to have the power now claimed.”

The letter concludes by arguing that the implications to the separation of powers means the legislature would have needed to directly subject itself to the auditor.

“We do not believe that the Legislature would have chosen to ignore these separation of powers issues entirely. Instead, the Legislature simply did not include itself among the entities subject to the [auditor’s] auditing authority,” the AG concludes.

The leaders of the legislature welcome Campbell’s finding. In a joint statement, House Speaker Ron Mariano and Senate President Karen Spilka thanked the AG for her work.

“We appreciate the Office of the Attorney General’s thorough review of this matter and respect the process that led to this decision. The Attorney General’s decision has reinforced our long-held position that the Auditor does not have the statutory or constitutional authority to audit any other separate branch of government,” they chambers’ two leaders said.

While Campbell’s review is over, the issue is certainly not dead. Though the ballot question could face challenges before it hits the ballot next year, that will be the next front. Were voters to adopt the law, the legislature could still meddle with it. Campbell would still need to enforce it.

Though, the politics of such resistance could be too much for Beacon Hill. Secretive legislators’ last redoubt may be the courts.