red tape

Massachusetts voters asked for transparency last November and have yet to see it. The last time I wrote about this, I hammered a few key points:

  • The voters demanded it
  • Transparency is necessary for democracy
  • Inaction begets opacity

This topic is difficult to write fairly about because there are a few competing perspectives which intertwine in a mix of good and bad faith. Not only are your claims under scrutiny, but so are your motives; if you advocate for the audit, are you doing it because of an earnest wish for transparency, or are you hoping to dismantle left-wing dominated power structures? And similarly, if you’re against the audit, are you strongly adhering to an honest interpretation of the separation of powers, or are you wary that allowing right-wing agitators to exploit gaps in the majority left-wing legislature will weaken their position?

Examining both sides

This past month, two members of the blog MassPoliticalProfs wrote an article taking the opposite perspective my previous writing on the topic did. I felt that they made a few compelling points, but failed to address others. To demonstrate the divide, I’m splintering my own past post with the arguments that I felt landed, juxtaposed with the ones I feel they didn’t address.

What is unconstitutional?

One of the main arguments the authors forward in their article is that the State Auditor does not have the constitutional right to uphold the audit:

Expert witnesses pointed out that the constitution expressly grants each chamber the power to make rules and control its own proceedings, and that the Massachusetts Supreme Judicial Court has held that this authority “is a continuous power absolute and beyond the challenge of any other tribunal.” The testimony made clear that an audit into any aspect of the ways in which either chamber of the Legislature chooses to conduct itself could in multiple ways intrude upon the settled constitutional authority of each to manage its own affairs.

This seems like this fails to address two key arguments:

  1. Self-governance over proceedings does not inherently equate to immunity from fiscal accountability. The cited SJC language (“continuous, absolute, beyond challenge”) comes from rulings meant to prevent judicial interference in legislative process (things like how votes are recorded, how rules are adopted, or how debates are conducted), not to give absolute financial freedom.
  2. Even co-equal branches operate within a system of checks and balances. The judiciary can review legislative acts for constitutionality, and the executive can veto appropriations—both intrusions, yet both constitutional. The idea that audit review is uniquely impermissible ignores how inter-branch oversight already exists.

The Supreme Judicial Court’s description of legislative authority as”absolute” refers to how each chamber conducts its deliberations, not to how it spends public funds. Financial accountability is not a legislative proceeding, it’s a public duty.

The democratic implication

Something which the authors don’t seem to touch upon: 72% of voters voted for the audit. In a democracy, you are still voting within the bounds of the rules set ahead of time by the Constitution; if 99% of voters elected a leader that wanted to commit illegal acts, they would by definition still be illegal and disallowed under the same framework that elected them.

However, there’s something to be said when the majority of voters loudly demand a solution for a known problem, and nothing is done to address it. Don’t dangle a carrot in front of voters, then when they chase it en masse, tell them it was never possible and offer no other solutions. What can be done to address legislative opacity in Massachusetts if the State Auditor can’t audit the legislature? If the goal is the pursuit of democratic ideals, then we need to propose a path within the framework as described that gets us there. Throwing our hands in the air as if to say “actually, that question was never allowed, oh well!” seems unproductive.

The bottom line

This was clearly a well-written article by two articulate titans of Massachusetts political commentary, and they argue some fair points that I think unraveled some of my own. Still, I think their piece makes some leaps—plausible ones, but not bulletproof—and the fact that it stops short of proposing an alternative hurts its impact.

The Legislature’s opacity is a bipartisan problem looking for a nonpartisan solution. If an audit isn’t that solution, then we deserve to hear what is.