by Chris Lisinski, CommonWealth Beacon
March 12, 2026

LAWMAKERS HAVE SPENT MONTHS whispering concerns that ballot questions to subject them to the public records law and to reform the system of legislative stipends are unconstitutional, and now senators want the state’s highest court to provide some important feedback.

The Senate voted Thursday to ask the Supreme Judicial Court for opinions on whether the pair of reform-the-Legislature ballot questions run afoul of the constitutional separation of powers, a rare move that could reshape debate heating into the thicket of election season.

It’s a different legal technique than a lawsuit challenging either measure’s eligibility to go before voters, and, unlike a decision in such a case, the answers that justices hand down would not be legally binding.

Still, the decision to turn to the court reflects growing legislative resistance to the campaigns by disgruntled transparency advocates, who want to wrench open Beacon Hill’s curtains and force the Legislature to make operational changes.

Senators linked their request to the ongoing fallout from Auditor Diana DiZoglio’s attempts to audit the House and Senate. Voters embraced that idea with landslide adoption of a ballot question in 2024, but the probe remains in limbo amid sustained opposition from top Democrats, who view it as unconstitutional overreach.

“Candidly, misunderstandings and a lack of clear explanation of the constitutional implications of [the audit question] during the last ballot cycle [have] led to confusion and frustration — both on the part of the legislators who are obliged to uphold the Constitution and the voters who voted for it,” Senate Majority Leader Cynthia Creem wrote in a post Thursday, which made no explicit reference to either ballot question. “That issue is now with the courts, and we are hopeful that they will provide resolution on this issue soon.”

“The steps we’re taking today aim to avoid similar confusion about some of the ballot questions now before us,” she added.

Meanwhile, Republicans used the Thursday action as a chance to push once again for action to clear up a legal logjam preventing the voter-approved audit law from taking effect. Soon after the chamber voted to request SJC opinions on the two latest proposals, the GOP caucus wrote to Senate President Karen Spilka asking to do the same for the audit law.

Lawmakers have already signaled skepticism about the records question, which they argue could violate their constituents’ privacy, and the stipends reform proposal, which would condition significant chunks of legislative pay on new performance metrics.

James DiTullio, the Senate’s legal counsel, wrote to Attorney General Andrea Campbell’s office in August unsuccessfully urging her not to certify either question as eligible to advance.

Now, the Senate wants the high court to consider whether the measures actually fulfill requirements to go before voters and, if they are indeed ballot-eligible, whether the proposed changes would infringe on the Legislature’s ability to set its own rules and proceedings, cool “freedom of deliberation, speech and debate,” or give the judiciary branch improper power over the legislative branch.

The stipend question would change the “internal legislative procedures that are within the constitutional unicameral powers of the Senate and House of Representatives,” says the Senate order approved Thursday. A parallel order asking for the court to weigh the records measure contends that subjecting the Legislature to the public records law — which most other government entities in Massachusetts already follow — would “grant the judicial branch new and unprecedented authority to review and invalidate determinations made by the [Legislature] concerning the management and maintenance of its own records.”

It’s not clear how soon justices will produce a response. Lawmakers hope to get opinions back before May 6, which is their deadline to act on any of the 11 ballot questions currently pending before the House and Senate.

Also unclear is what would happen should the court deem either or both questions to be rife with constitutional problems. If that happened, legislators or any other party would likely need to file additional legal action to force any change.

Proponents of both ballot questions slammed the Senate maneuvers, contending that asking the court for review is a “deliberate” effort to stifle proposed reforms. In a statement, DiZoglio said “it is not unconstitutional for taxpayers to view taxpayer-funded financial receipts, state contracts and other administrative communications and records.” Former MassGOP Chair Jennifer Nassour, who’s backing the stipend reform measure, argued that the Legislature is “using its power and money to prevent taxpayers from being heard.” (Nassour sits on the board of MassINC, the organization that publishes CommonWealth Beacon.)

The state constitution grants the House, Senate, governor, and Governor’s Council the ability to ask SJC justices for opinions on “important questions of law, and upon solemn occasions.”

They do not invoke that power frequently. Senate officials said Thursday the Legislature last sought an opinion of the justices in 2016 on an ocean erosion bill, but the court said the inquiry was too broad for them to answer. A year earlier, amid a House-Senate dispute over the ability to raise taxes using the state budget as a vehicle, the court sided with senators and deemed the state budget to be a “money bill.”

At least on paper, lawmakers could have opted to file a lawsuit challenging either ballot question’s eligibility, something already done by opponents of measures proposing statewide rent control, an income tax cut, and a change to the party primary election system.

Senate officials said Thursday they felt that option had too many downsides. Legal challenges are more involved processes, with a slew of motions and oral arguments that take up additional time. The SJC often rules on such cases in the summer, which would be after the May 6 deadline by which the Legislature must act on the ballot questions currently under review. A nonbinding opinion could, theoretically, land before that date.

Legal challenges are also limited to examining a narrower set of ballot question eligibility criteria, which could prevent justices from touching on bigger topics such as the constitutional separation of powers, according to Senate officials.

Then, there are intertwined concerns over politics and logistics. Officials are unsure if the Senate would need to hire outside counsel to represent it in court. It’s also not clear if either branch of the Legislature as a body has ever sued to block a ballot question from advancing, and doing so could give ballot question proponents more ammunition to paint Beacon Hill as an opaque fiefdom in need of outside reform.

The Senate acted alone Thursday, without a similar vote in the House, where top Democrats are also skeptical of the ballot questions but have not signaled if they plan to ask the court for assistance.

Jesse Littlewood, campaign manager for the Coalition for Healthy Democracy that’s involved in the records fight and is also pushing a measure to implement all-party primary systems, said the ballot question process “exists for moments exactly like this.”

“When Beacon Hill responds to reform proposals with tactics like this, it highlights the deeper problem: a political system that too often protects itself rather than inviting accountability,” he said in a statement. “These initiatives went through the legal process and qualified for the ballot. 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.”

This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.