State legislatures figure in The Bob Zadek Show less as legislative bodies than as institutions whose constitutional role has been repeatedly redesigned. Guests and the host return to three functions the sources describe: choosing United States senators before 1913, selecting presidential electors, and deciding whether public employees may be compelled to pay union dues. Later episodes add a fourth: the claim, made in connection with Moore v. Harper, that state legislatures alone control election procedures.
The Seventeenth Amendment and the loss of state power
In an April 2012 episode, Bob Zadek told a caller that until 1913 senators were not directly elected by the people but elected by the state legislators, and that the significance was that senators went to Washington representing their state rather than the people. In his account, had senators been elected by the states, they would not have supported Washington’s attempts to take power from the states, and the change meant nobody was looking out for the states. He added that the Constitution would never have been ratified if senators were directly elected by the people, and that this caused the devolution of power and money from the states to Washington Who’s Looking Out for Us? (2012).
The same history was given in a July 2019 episode by Randall Holcombe, who described the Founders as having designed a government that was one-sixth democratic. In his telling, the House of Representatives was the democratic part, while senators were chosen by the state legislatures, not by the voters, an effort to deliberately insulate the Senate from democratic pressures; one of the things the Founders wanted was for the Senate to represent the interests of the state governments, not the people. He dated the change to the 17th Amendment, passed in 1913 [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
Holcombe extended the point to the executive branch, describing the Electoral College as a search committee of experts whose members were selected by the states, with the Constitution never specifying how the states choose their electors. He said the Founders expected most electors to vote for a favorite son candidate from their state, that in most cases nobody would get an electoral majority, and that the House of Representatives would then choose from the top electoral vote-getters — originally the top five, changed by the 12th Amendment to the top three. He noted that by the 1820s most states had gone to popular voting for electors, and that the last state to do so was South Carolina, after the Civil War [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
The National Popular Vote Interstate Compact
A September 2020 episode turned to a plan that would change the states’ role in presidential selection without a constitutional amendment. Peter Wallison described the National Popular Vote movement as a simple plan under which the governor and the legislatures of any state can declare that their electors will vote for the person who gets the national popular vote, not the vote in their own state. He said the electoral votes of a number of states totaling 196 had joined the movement, that all of them were Democratic states, that no Republican state had yet voted, and that 74 additional votes would put the system into effect. He predicted litigation and said the plan had not been tested in the courts Will We Know Who the President Is on November 4? (2020).
Wallison also predicted the consequence he expected: 10 or 12 or 15 people running for president, a winner with something like 20% of the vote, and a multi-party rather than a two-party system. Bob Zadek’s framing of the segment was that the movement would in effect write the Electoral College out of the Constitution Will We Know Who the President Is on November 4? (2020).
Compulsory dues and the limits of state lawmaking
A June 2017 episode presented the sharpest disagreement over what state legislatures should decide. Terry Pell, described by Bob Zadek as president of the Center for Individual Rights, said there are 23 states with compulsory dues laws and that the rest are considered right-to-work states, a result of decisions by the state legislatures in those states. He then argued that this is not an issue that can or should appropriately be decided by state legislatures, because the US Constitution, in particular the First Amendment, prohibits the state from enacting compulsory dues laws. In his view the issue should be settled by the Supreme Court for the country as a whole, and there should not be right-to-work and non-right-to-work states A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017).
Pell’s account of the underlying claim was that compulsory dues are a free speech issue because the state forces teachers to support a union with which they might fundamentally disagree, paying an organization to speak, lobby and bargain on their behalf, which under the law is considered compelled speech A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017).
A state-centered amendment process
A February 2017 episode with William Watkins Jr. proposed enlarging the states’ role in amending the Constitution. Watkins said the biggest thing that could be pushed for, aside from general education of the people about history and liberty, would be the amendment process, which he characterized as one in which the national government controls all amendments that could affect its power. He noted the never-used convention method, with fears over a runaway convention, and said Congress is the one that would call it and perhaps could set strictures on what the convention could consider. He observed that amendments outside the early founding era have typically augmented the power of the national government, and argued that the people need to push for a more state-centered amendment process in which the people in the states can propose amendments and have them ratified in the states without the action of Congress [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Bob Zadek responded that the problem with the solution is that it requires a lot of public officials — House, Senate, President — to agree to move forward, which is not likely because many of them would perceive themselves to be surrendering power. He said he found the greatest hope in the Supreme Court, because one or two changes in the composition of the court in the right direction would produce profound change, and called Neil Gorsuch a step in the right direction [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Watkins agreed there was great leverage and said that whatever one wants to think about Donald Trump, he had done a real solid with the nomination of Gorsuch, who seemed to be a strong originalist and someone who could fill the seat of a Justice Scalia. His concern was a fundamental problem with the court serving as a final arbiter of the Constitution and having nine unelected individuals exercising the power that they do. He said he would prefer to see the popular branches, where the people have a shot and a say, be more in the process, or the state legislatures, which are accountable to the people [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]].
Election administration and Moore v. Harper
An August 2022 episode with Dick Morris raised the office of Secretary of State, which Morris described as an office nobody pays attention to, keeping corporate records and the great seal and receiving filings from charities, whose only important function is supervising elections. He said that in 2018 the Democratic Party made sure to overthrow Republican Secretaries of State in the swing states, particularly Arizona and Michigan, and elected people who believed the dominant problem was voter suppression. He argued it was crucial in the 2022 elections, particularly in states like Arizona and Michigan, to elect Republican Secretaries of State committed to ballot integrity Dick Morris on the 2022 and 2024 Elections (2022).
Morris then described Moore v. Harper, which he said was working its way to the Supreme Court and would be in the court in the fall term, October and November. In his account the case would hold that only the state legislatures can control election procedures, quoting the Constitution’s language that the times, manner, and places of holding elections for Congress shall be determined by the state legislatures. He said five swing states — Michigan, Pennsylvania, Wisconsin, North Carolina, and Minnesota — had Republican legislatures that passed laws prohibiting drop boxes and requiring signature verification and photo identification to register and to vote, and that Democratic governors had vetoed those bills. In his reading, Moore v. Harper would strip the governors of the right to veto those bills, leaving the legislature alone to make the determination Dick Morris on the 2022 and 2024 Elections (2022).
Across episodes
The topic recurs across five episodes, and the treatment shifts with the question asked. In 2012 and 2019 the state legislatures appear as the body the Founders used to represent state governments in Washington, with the 17th Amendment as the loss; in 2017 Watkins proposes giving the states a larger role in proposing amendments, while Pell in the same year argues that the First Amendment removes compulsory dues from state legislative decision entirely; in 2020 the legislatures are the instrument of the National Popular Vote plan; and in 2022 they are the body that Moore v. Harper would free from gubernatorial veto over election rules. The excerpts show no single line of development, but a consistent disagreement over whether state legislatures are the proper locus of decision or an obstacle to be routed around.
What the sources do not cover
The excerpts do not state the outcome of Moore v. Harper, the text or holding of any cited case, or the names of the bills Morris describes as passed and vetoed. They do not give the founding date of the Center for Individual Rights, the full name of the National Popular Vote compact, or the states that had joined it beyond the total of 196 electoral votes. Where an excerpt breaks off mid-sentence or ends at a section break, nothing further is reported here.