Auditor Blasts ‘Sole and Exclusive Remedy’ Language In Senate Bill
By Sam Drysdale
Auditor Diana DiZoglio says the Senate’s public records bill includes a “poison pill” designed to undercut November’s Question 1 before voters even cast their ballots.
As senators prepare to vote Thursday on their version of a legislative public records bill, DiZoglio contends language declaring it the Legislature’s “sole and exclusive remedy” for obtaining records is intended to block any broader public records law approved by voters from ever applying to Beacon Hill.
She called it an “unconstitutional” attempt to preempt the ballot initiative before Election Day, telling the News Service she would take it to court if necessary.
“What stands out clearly is a poison pill the Senate is trying to pass along that makes it so any other law, including those passed at the ballot, wouldn’t be able to update their proposed changes,” DiZoglio said in an interview.
The provision she points to says that “Notwithstanding… any general or special law to the contrary, the procedure set forth in this section shall constitute the sole and exclusive remedy for obtaining access to records of the general court and no other provision of this chapter or any other law providing for public access to public records shall apply to the general court or a branch, committee, member, officer, caucus or employee thereof.”
It must first address 25 amendments, but the Senate is expected to approve the bill that leaders have described as a historic transparency overhaul. The bill would create a formal process for requesting legislative records, but it stops short of applying the state’s existing public records law to the Legislature. Instead, the bill establishes a separate and more limited records system for lawmakers, largely covering categories of records that are already publicly available and setting out how the public may request them. The Senate’s version would add some records not explicitly included in the House version.
Supporters of Question 1, including DiZoglio, said the ballot questions broad approach would provide substantially more public access than the Senate’s proposal, which instead establishes a separate public records framework specifically for the legislative branch and governor’s office.
“The Senate is trying to create a special law for itself and prevent people’s voices from being heard at the ballot box by preemptively striking,” she said.
She also questioned whether lawmakers can enact legislation that she believes would override a pending ballot initiative.
“This is unconstitutional. People have a coequal right to the Legislature to create laws under our constitution,” DiZoglio said. “What does it mean if the Legislature can just go into session and draft laws that preempt ballot questions and upend the will of the people they supposedly represent, before they even have a chance to give their say? It’s a constitutional crisis.”
The bill got the endorsement from good government group Common Cause, with director of the Massachusetts branch Geoff Foster saying at the time of the Senate bill’s roll out that he believed it could “sustain constitutional challenges.”
Whether the provision will ultimately survive legislative negotiations, supersede a voter-approved ballot law or withstand a constitutional challenge is unknown.