Pyrrhic victory?

The Massachusetts Legislature handed Auditor Diana DiZoglio an early Christmas present in her quest to audit the General Court when it failed to agree on a supplemental budget to help shelter migrant families — and fund public employee contracts.

But will that gift turn into a giant lump of coal by next Christmas?

A careful reading of Attorney General Andrea Campbell’s 17-page letter rejecting DiZoglio’s request to sue lawmakers to allow the audit suggests the answer is a resounding yes.

The auditor and her supporters — on both the left and right — rallied Tuesday to celebrate collecting enough signatures to start the process of placing an initiative question on the 2024 state ballot.

“Beacon Hill cannot continue its closed-door, opaque operations with so much at stake,” DiZoglio said in a statement released by the ballot question committee.”

Coming after the latest debacle of closed-door lawmaking, this may qualify as understatement. But there are serious roadblocks ahead.

The initiative petition is one of two ways for citizens to make a difference. It requires question backers to collect a designated number of signatures to place a question before the Legislature which “can pass the measure, propose a substitute, or take no action.”

It’s safe to assume lawmakers will select Option #3 in this case, which will send backers out to collect additional signatures for a spot on the November 2024 ballot.

Maybe.

DiZoglio has taken aim at Chapter 11, Section 12 of Massachusetts General Laws, which defines the auditor’s duties. Her claim is the Legislature is a “department” of state government and there is a history of the auditor examining the work of the General Court.

The initiative would enable the office to review not only hiring and spending within the chambers, but how they appoint committees, adopt or suspend rules, and their policies and procedures.

Senate President Karen Spilka has not minced words:

"Under the Massachusetts Constitution and as the separation of powers clause dictates, the Senate is required to manage its own business and set its own rules. Those rules require that the Senate undergoes an audit every fiscal year by a certified public accounting firm experienced in auditing governmental entities and provide that audit to the public. Further, Senate business is made public through journals, calendars and recordings of each session, while payroll and other financial information is publicly available on the Comptroller’s website. If anyone wishes to view this information, it is available to the public."

The separation of powers clause. Therein lies the rub.

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The State Auditor’s Office is an executive office.

Campbell’s letter thoroughly trashes DiZoglio’s argument on precedent in denying the right to sue the Legislature.

“The SAO is a creation of the Legislature and is vested with the authority granted to it by the Legislature. … That authority does not include the power to audit the Legislature itself over the Legislature’s objection. This conclusion is supported by the statutory text, its legislative history, judicial interpretation of similar statutes, and the historical record.”

Which brings us to the constitutionality question.

That second way for citizens to exercise power is through a question to amend the constitution. It’s a more complicated process but can succeed, as we saw most recently with passage of the Fair Share Amendment AKA the millionaire’s tax.

First and foremost, it requires action by lawmakers in a Constitutional Convention, where legislative leaders control the agenda. If they agree to take up the issue, it must win support from 25 percent of members in each of two successive two-year sessions.

That means the earliest this proposal could reach voters is 2026. Assuming of course that lightning doesn’t strike and lawmakers agree to even take up the issue, let alone muster 25 percent support.

That’s why DiZoglio chose to amend General Laws and not the Constitution.

And while Campbell ruled the Auditor can’t sue the Legislature, there’s nothing to prevent lawmakers (or surrogates) from challenging either form of ballot question.

And rest assured there will be one.

The Senate’s attorney has argued that the petition should have been filed as a proposed constitutional amendment.

And while Campbell studiously avoided a firm ruling on the constitutionality question, she certainly dropped a few hints of what might happen if someone sues to keep the question off the 2024 ballot.

“An unqualified auditing power sufficient to audit the Legislature over its objection would be difficult to reconcile with the powers vested exclusively in the Legislature by various parts of Chapter 1 of Part II of the Massachusetts Constitution, and protected from encroachment by Articles 21 and 30 of the Massachusetts Declaration of Rights. 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 SAO’s auditing authority.”

If wagers on government action were allowed under state law (after all, don’t politics and sports overlap?) assuming the Legislature will not sue to stop the question is a sucker’s bet. And based on Campbell’s letter, the odds seem to be in their favor.