Restoring the States' Check on Washington — Without Repealing the 17th Amendment

The problem we're actually trying to solve

The push to repeal the 17th Amendment gets the diagnosis right and the prescription wrong.

The diagnosis: the Senate was designed to represent the states as governments, not just as populations. When senators answered to state legislatures, a federal law that dumped costs on the states, preempted state authority, or attached strings to money the states couldn't refuse had to get past people who worked for the states. After 1913, that check was gone. Senators became six-year national politicians, funded nationally, whipped by national parties, and largely indifferent to the institutional interests of the state whose name is on their office door.

The prescription — repeal — fails on two counts. First, it asks 38 states' worth of voters to give up a vote they've held for over a century, which is why it has never gotten past a handful of sponsors and never will. Second, it forgets why the 17th passed in the first place. The pre-1913 system was not a golden age. Deadlocked legislatures left Senate seats empty for years (Delaware went four years with one seat vacant). A single legislator's vote was cheap to buy and often decisive, and bribery scandals were routine. State legislative races turned into proxy fights over the Senate seat, so voters couldn't hold their legislators accountable on anything else. By 1913 more than half the states had already worked around legislative selection with de facto popular primaries. The amendment ratified what the states had already decided.

So the question is not "how do we go back." It's: how do we give state governments real institutional leverage over federal power, using a mechanism that doesn't have the old failure modes and that 38 states could plausibly ratify?

This proposal offers two answers. They work independently and could be pursued together.

Proposal 1: The State Repeal Power

Any federal statute, or any provision of one, and any federal regulation is repealed when two-thirds of the state legislatures (34) pass identical resolutions rejecting it.

That's the whole mechanism. No convention, no Congress, no court. The states themselves act as a collective veto over specific federal actions.

Why this is the right instrument

It targets the actual complaint. The grievance behind 17th repeal is unfunded mandates, preemption, conditional-spending coercion, and regulatory overreach. A repeal power hits exactly those things, one at a time, with no intermediary. A senator chosen by a legislature still has to vote on everything, still gets whipped, still needs money. A repeal resolution goes straight at the offending law.

It takes nothing away from anyone. Voters keep their vote for senator. Congress keeps its lawmaking power. This is additive, which removes the single biggest political obstacle to any structural reform: the accusation that someone is losing a right they already have.

It has no partisan home. The states on the losing end of federal policy change every few years. A repeal power appeals to whichever coalition is currently getting rolled, and the threshold (34 states) is high enough that nothing purely partisan can clear it. In practice the mere existence of the power changes federal behavior on mandates, the way the filibuster shapes bills that never face a cloture vote.

It fixes the pre-1913 problems by not touching them. No deadlock, because nothing has to be selected. No bribery, because there's no individual to bribe — you'd have to buy 34 legislatures. No capture of state elections, because state legislators aren't choosing anyone.

Design details

• Identical text. Resolutions must reject the same statutory or regulatory provision, identified by citation. This prevents 34 vague "we don't like this" resolutions from being stitched together.
• Sunset on applications. Each state's resolution expires after four years unless renewed, so old resolutions don't accumulate silently toward a threshold no current legislature intended.
• Certification. The Archivist of the United States certifies when the threshold is reached, as with amendment ratifications. Repeal takes effect 90 days later.
• No re-enactment by rider. Congress may re-enact the repealed provision only as a freestanding bill, subject to the same repeal power. This stops the provision from being buried in a must-pass omnibus.
• Scope. Applies to statutes, regulations, and executive orders with the force of law. Does not apply to treaties, declarations of war, or the Constitution itself.

Proposal 2: Reformed Senate Selection — Legislature Nominates, Voters Decide

If you believe selection itself is the lever worth pulling, here is the version that keeps the accountability of legislative selection and discards the corruption and deadlock.

Each state legislature nominates a slate of two or three candidates for the U.S. Senate. Voters elect one of them in the general election.

Rules

1. Nomination by majority of each chamber, with one guaranteed slot for the minority caucus of each chamber, so a dominant party cannot present two clones.
2. Hard deadline. If the legislature fails to certify a slate by a fixed date (say 120 days before the general election), the seat goes to an ordinary open primary. This eliminates deadlock as a strategy — holding out gains nothing.
3. Recall by supermajority. A sitting senator may be recalled by a two-thirds vote of both chambers of the state legislature, with the seat filled by the same nomination-and-election process at the next general election. This is the mechanism that makes senators answer to the state mid-term, which is what repeal advocates actually want.
4. Popular election remains final. Voters choose from the slate. Nobody loses their ballot.

Why the old failure modes don't recur

• Deadlock is solved by the fallback. There is no leverage in refusing to nominate.
• Bribery payoff drops from "the seat" to "a place on the ballot," and the voters get the last word. You can buy a nomination; you can't buy the election with it.
• Capture of state legislative races is reduced, not eliminated. The legislature gatekeeps rather than chooses, which lowers the stakes. This is the honest weak point of the proposal.

Why this beats straight repeal

A senator nominated by the state and elected by the voters owes something to both. Under straight repeal, a senator owes everything to a legislative majority and nothing to the public. Under the current system, a senator owes everything to a national donor network and nothing to the state government. Dual accountability is the point.

Why any of this requires a constitutional amendment

There is no state-law shortcut. In U.S. Term Limits v. Thornton (1995) the Supreme Court held that states cannot add qualifications for federal office. In Cook v. Gralike (2001) it struck down even ballot labels designed to steer voters. States cannot recall federal officers, cannot bind senators to instructions, and cannot restructure how their senators are chosen. Any of the above must go through Article V.

That's why the political viability question matters more than the design question. Of the mechanisms available, the State Repeal Power is the only one that's purely additive, has cross-partisan appeal, and doesn't ask a single voter to give up a vote. That is the one that could reach 38 states.

Anticipated objections

"This is minority rule." Thirty-four legislatures is not a minority of anything. It's a larger consensus than is required to amend the Constitution through Congress. And the power is purely negative — it can undo, not create.

"The 17th isn't why the federal government grew." Largely true. The income tax (same year), the Depression, and two world wars did most of that. This proposal doesn't rest on the historical claim. It rests on the forward-looking one: the states currently have no institutional lever over federal action short of litigation, and they should.

"States will use it against popular laws." Possibly, if 34 of them agree — at which point the law is, by definition, not popular in the states. Congress retains the power to re-enact, freestanding, if it can.

"Legislative nomination will still be partisan." Yes. So is every primary. The minority-slot rule and the popular vote are the safeguards, and they're stronger than anything the pre-1913 system had.

What to do with this

Both proposals can be introduced as model resolutions in any state legislature. The repeal power in particular fits the existing Article V application movement and could be drafted as a single-subject convention application. If you're in a state that has already passed a 17th Amendment repeal resolution, this is the version to bring back to your sponsor: same goal, no lost votes, actually ratifiable.