Sam Drysdale
State House News Service

Senate Republicans are pressing Democrats to use a new effort to seek guidance from the state's highest court on two proposed legislative reform ballot questions to also force legal scrutiny of the voter-approved audit law that has been stalled for more than a year.

In a letter to Senate President Karen Spilka, five Republican senators asked the chamber to also seek an advisory opinion from the Supreme Judicial Court on the 2024 law authorizing the state auditor to audit the Legislature — a measure approved by 72% of voters but never implemented as lawmakers resist compliance.

"We request that the Senate act similarly and consistently to place before the court questions relative to the law regarding the audit of the General Court, Chapter 250 of the Acts of 2024," the Republican caucus wrote. "The voters who approved this law by a decisive margin deserve a clear and authoritative answer as to its constitutionality and the Legislature's corresponding obligations."

The letter landed hours after the Senate voted during a lightly attended session Thursday to seek advisory opinions from the Supreme Judicial Court about two separate initiative petitions headed toward the November ballot: one that would subject the Legislature and governor's office to the state public records law, and another that would overhaul how legislative stipends are structured.

Only about five of the Senate's 39 members were present when the chamber adopted the orders by voice votes, rather than recorded roll call votes that would show how each senator voted.

Supporters of the orders say they just want key legal questions answered about an issue that is heading for the ballot, while ballot question backers said the Senate's move is "a deliberate attempt to keep voters from having their voices heard on needed legislative reforms on transparency and accountability."

GOP Pushes to Add Audit Law to Court Questions

Republicans argue the Senate decision to ask the court about the two initiatives should extend to the already-enacted audit law — particularly because the Legislature's refusal to comply has left the measure in limbo.

"Clearly the provisions of Chapter 250 of the Acts of 2024 not only confer upon the auditor the authority to audit the General Court, but also the commensurate obligation on the part of the House and Senate to comply," the Republicans wrote. They said gaining an SJC opinion of the audit law is "at least, if not more pressing" than the two ballot initiatives.

"While those measures may impact the operations of the legislature if they prevail in the initiative petition process and are approved in a future election, the provisions of Chapter 250 of the Acts of 2024 have been already enacted by a 72% vote in the 2024 election, and the duties it creates exist today," the Republican caucus wrote.

Senators said sending the audit law to the court would "remove the present uncertainty, preserve the Senate's institutional integrity, and enable the Senate to discharge its constitutional responsibilities with legal clarity."

An aide to Senate Minority Leader Bruce Tarr said Republicans could attempt to file their own order but acknowledged that Democratic leadership controls whether such proposals advance.

When asked to respond to the Republicans' request, a Spilka spokesperson said: "That matter is presently before the Supreme Judicial Court, and the Senate President is hopeful that the Court will provide resolution on that issue soon."

The Spilka spokesperson was referring to Auditor Diana DiZoglio's push to independently get representation to pursue a case before the high court in an attempt to force enforcement of the law. Attorney General Andrea Campbell has said she'll represent House Speaker Ron Mariano and Spilka, the defendants in the case. 

"As we are currently before the SJC right now, it would be helpful if the Senate Republicans would send in an amicus brief supporting our efforts to obtain representation to audit the Legislature," DiZoglio said, when asked for a response to the caucus's Thursday letter.

Rare Advisory Opinion Process

The Senate's move Thursday centers on a rarely used constitutional mechanism that allows the legislative and executive branches to ask the Supreme Judicial Court for nonbinding advisory opinions. 

Under the state Constitution, "Each branch of the Legislature... shall have authority to require the opinions of the Justices of the Supreme Judicial Court, upon important questions of law, and upon solemn occasions."

According to Senate officials, the last time the Legislature or another branch sought such an opinion was in 2016, with another request the year before.

The Senate wants the justices to weigh in on constitutional questions before they face a May 5 deadline to act on the two initiative petitions.

The records initiative (H 5004) would extend the state public records law to the Legislature and the governor's office, which are currently exempt. The proposal includes exemptions for documents tied to the development of public policy and communications between lawmakers and constituents related to requests for assistance.

Supporters argue the measure would bring Massachusetts in line with most other states and open records of the legislative and executive branches to public scrutiny. But legislative leaders have raised constitutional and constituent privacy concerns. At a public hearing last week, William Clark, a representative from the National Conference of State Legislatures, gave a presentation on public records laws around the nation. He said nearly every state has some legislative exemptions to their public records law, though the degree of them varies.

"Every resident of this state, and every member of the press, needs to speak out loudly against the Senate abusing the judicial system to deny the people from having direct access to public records," DiZoglio — who is backing the public records measure — said in a statement responding to the Senate's move. 

She continued, "It is not unconstitutional for taxpayers to view taxpayer-funded financial receipts, state contracts and other administrative communications and records. This isn't just an audit fight anymore, this is a fight for public records to be made directly available and accessible to all people."

The stipend proposal (H 5010) would reshape how additional compensation is distributed to legislative leaders and committee chairs. The measure would allow stipends of up to 75% of the base salary for the House speaker and Senate president, 50% for the next tier of leadership and 33% for most committee chairs. Legislators without stipends who serve on committees handling a high volume of bills would receive 20% stipends. It would also tie half of those stipends to procedural requirements, including mandates that committees hold public hearings and public mark-up sessions on all bills before certain deadlines and vote on reports in public meetings.

Jennifer Nassour, treasurer of the committee backing the stipend reform initiative, said voters would see the Senate's request as an attempt to protect lawmakers' own interests. 

"Massachusetts voters are smart enough to recognize what this is," Nassour said. "The legislature compensates itself through a system it designed using taxpayer money, and now it's using its power and money to prevent taxpayers from being heard. That should trouble every Massachusetts resident."

At a legislative hearing last week, lawmakers peppered supporters of the public records measure with skeptical questions about constitutional considerations.

Attorney General Campbell determined last year that the initiatives met constitutional requirements to move forward in the ballot process.

Former state Rep. Jonathan Hecht, who is now involved in the initiatives' push, said the Senate's action reflects a broader pattern on Beacon Hill. 

"I spent years in that building and I know what it looks like when the legislative leadership is protecting its own power and perks rather than the public it serves," Hecht said. "This ballot question went through the process, received legal approval from the Attorney General, and earned the signatures of over 97,000 voters. The voters will have the final word, not the legislature."

Speaking on the Senate floor before the vote, Sen. Paul Feeney said the request was about gathering information rather than challenging the ballot questions. Feeney is a member of the Committee on Initiative Petitions that is reviewing a large slate of ballot law proposals that could set a record.

"These orders ask the Supreme Judicial Court to consider questions of law around two pending ballot questions: public records, legislative rules reforms tied to compensation," Feeney said. "The action we're taking now is an important step to advance both conversations."

While the language of the orders challenges their constitutionality, Feeney said the orders do not attempt to block the initiatives themselves.

"Today is not a vote on the measures themselves by any stretch of the imagination," he said. "What we're doing is asking important questions to the people who are best suited to provide those answers."

He framed it as a matter of "good government."

The Committee on Initiative Petitions, he said, faces tight deadlines and is trying to gather clarity before lawmakers must decide whether to enact the measures.

"The date for us to do that is May 5, 2026, so you can imagine… that day will be upon us quickly," Feeney said. "At the end of the day… we're just asking questions, necessary questions."

"Grave Doubt" Raised in Senate Filings 

In its filing regarding the public records initiative, the Senate said "grave doubt exists" about whether the proposal is constitutional.

The Senate order argues that applying the public records law to legislative records could conflict with constitutional provisions allowing each chamber to determine its own rules and manage its proceedings.

"Grave doubt exists as to whether the petition proposes a law within the meaning of Article XLVIII," the order states.

It also says, "The petition seeks to supersede the authority granted by the Constitution of the Commonwealth to each house of the General Court to make its own rules and manage its own proceedings, including the authority to manage and maintain its records."

The filing asks the justices to determine, among other things, whether the proposal improperly regulates internal legislative procedures rather than creating a law, and whether granting enforcement authority to courts and executive officials would violate separation-of-powers protections.

The Senate also asked whether the measure could intrude on legislative privilege, including constitutional protections for "freedom of deliberation, speech and debate."

In the second order pertaining to legislative stipends, the Senate questioned whether the measure would improperly mandate internal legislative procedures by reshaping committee rules and conditioning compensation on whether the Legislature follows them.

"Grave doubt exists as to whether the petition fails to propose a law… by mandating changes to internal legislative procedures," the filing states.

Icy Reception on Beacon Hill

Both ballot proposals have received a chilly reception inside the Legislature, similar to the resistance lawmakers have shown toward the audit law.

At a public hearing last week on the public records proposal, committee members pressed supporters with skeptical questions about its constitutional implications.

Senate Counsel James DiTullio had already urged Attorney General Andrea Campbell last year not to certify the question for the ballot, arguing it "seeks to infringe" on one of the Legislature's most fundamental constitutional powers: its ability to control its own rules of procedure.

Campbell ultimately certified both initiative petitions, determining they could proceed to the ballot.

But Senate officials say that certification involves a narrow review under Article 48 of the state constitution, which limits the attorney general to evaluating specific technical criteria — such as whether a measure attempts to appropriate money or combines unrelated subjects — rather than broader questions like separation of powers or legislative privilege.

Because of that limited review, officials said, lawmakers believe it is appropriate to ask the Supreme Judicial Court to weigh in on broader constitutional issues.

Asked why they're pursuing a non-binding opinion rather than directly litigating a challenge, Senate officials said a lawsuit would largely be limited to technical claims under Article 48 of the state constitution, which governs the initiative petition process. 

By contrast, the advisory opinion route allows the Legislature to raise broader constitutional issues such as separation of powers, legislative rulemaking authority and legislative privilege.

Lessons From the Audit Fight

Senate Majority Leader Cindy Creem suggested in a Thursday Substack post that the chamber's approach was partly shaped by the experience of the 2024 audit law.

When asked why they did not pursue an unbinding SJC opinion in 2024 for the audit law, Senate officials said senators at the time believed that raising their own and the attorney general's constitutional concerns would be enough.

Instead, the law's passage has led to a prolonged standoff between the Legislature and the state auditor, with sharply divergent views about its constitutionality and other issues.

That experience convinced some lawmakers that it is valuable to have an independent arbiter weigh in before voters approve new reforms affecting the Legislature.

"The Senate will ask the Court questions so the public can get the answers," Creem wrote.

"Candidly, misunderstandings and a lack of clear explanation of the constitutional implications of Question 1 during the last ballot cycle has led to confusion and frustration," she added, referring to the audit measure.

Creem said the Senate wants voters to have more information before weighing in on potential new reforms.

"We believe voters deserve to have as much information as possible before voting on a ballot question," she wrote.

Jesse Littlewood, campaign manager for the Coalition for Healthy Democracy that is supporting the measures, said the response from the Senate "highlights the deeper problem" the ballot initiatives are trying to address: "A political system that too often protects itself rather than inviting accountability."

"Efforts to delay or discourage that process only reinforce why these reforms, whether about transparency, accountability, or fair elections — are necessary in the first place," she said. "Ultimately, the voters of Massachusetts deserve the opportunity to weigh in."

In a letter published in The Boston Globe Thursday, House Speaker alleged that the legislative audit law was "about advancing the auditor's own political ambitions" and spoke for the entire Massachusetts House.

"What the House remains opposed is an audit that we believe to be unconstitutional and politically motivated," he wrote. "The state auditor is seeking to concentrate power in the hands of a single government official, in violation of the separation of powers principle that is foundational to the Massachusetts Constitution."

DiZoglio served in the House and Senate before becoming auditor and frequently clashed with Democratic legislative leaders over priorities.

If the Legislature does not enact the initiative petitions by May 5, supporters will need to gather 12,429 additional signatures to place them on the Nov. 3 ballot.