The scandalous self-enrichment scheme in the US Senate 

Once celebrated as “the world’s most deliberative body,” the U.S. Senate has sunk to new lows.  Buried in the 394-page bill to end the federal government shutdown, one provision serves as an example of what Rep. Chip Roy (R-Texas) has called “self-serving, self-dealing kind of stuff.” 

Easy to miss in the 24/7 news cycle preoccupied with health insurance subsidies, tariffs, inflation, airstrikes on alleged drug smugglers and the Epstein files, the legislation allows U.S. senators to collect as much as $1 million if they are not informed that their phone records have been subpoenaed.

This development, alas, constitutes evidence of a government of, by and for partisan politicians, not the American people. 

During his investigation of efforts to overturn the 2020 presidential election, special counsel Jack Smith sought access to the telephone records of several members of Congress, using an approach he later characterized as “entirely lawful, proper and consistent with established Department of Justice policy.” In May 2023, Judge James Boasberg signed off on subpoenas. 

Convinced that there were “reasonable grounds” to fear that disclosure would “result in destruction of or tampering with evidence, intimidation of witnesses, and serious jeopardy to the investigation,” Boasberg also agreed to Smith’s request that he order Verizon and AT&T not to inform the targets that they had provided the Department of Justice with the phone numbers of individuals making and receiving calls, and the length — but not the content — of conversations.

Two years later, following an investigation ignited by information from whistleblowers and the expiration of the non-disclosure order, Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, released the names of eight senators  and one congressman whose data had been turned over to the Department of Justice: Lindsay Graham (R-S.C.), Bill Hagerty (R-Tenn.), Josh Hawley (R-Mo.), Dan Sullivan (R-Alaska), Tommy Tuberville (R-Ala.), Ron Johnson (R-Wis.), Cynthia Lummis (R-Wyo.), Marsha Blackburn (R-Tenn.) and Rep. Mike Kelly (R-Pa). Sens. Ted Cruz (R-Texas) and Rick Scott (R-Fla.) had been targets as well, but apparently their phone records had not been supplied to the Justice Department. 

Fast-forward to contentious negotiations in the Senate to reopen the government. Hours before the vote, without informing or consulting Democrats, Majority Leader John Thune (R-S.D.) inserted into the omnibus appropriation bill a provision allowing senators to file civil suits against the government if their phone records were sought or obtained without notifying them. Notification could be delayed only if the individual was the subject of a criminal investigation. Litigants could collect up to $500,000 for records illegally obtained and another $500,000 for failure to notify.

There may well be valid reasons to revisit existing protocols for subpoenaing phone records and metadata and the circumstances under which targets must be notified. But this legislation is indefensible.

Not surprisingly, given the toxic political optics of “self-enrichment” and Senate Ethics Committee Rule 37 prohibiting members from aiding in the progress or passage of legislation that produces direct personal financial gain for them, the targeted senators — except the not-so-easily embarrassed Lindsay Graham and Tommy Tuberville — announced they did not intend to pursue compensation in court. Blackburn and Sullivan indicated they would vote to repeal the provision, which waives the common law doctrine of sovereign immunity.

Sovereign immunity dictates that, in the vast majority of cases, state and federal governments cannot be sued without their consent. This provision opens the door to a tsunami of demands for waivers from other privileged individuals and groups. Making the law retroactive to 2022 and giving senators a huge payday for alleged damages inflicted by investigative techniques consistent with Justice Department norms and authorized by a judge is also at odds with common-sense notions of fundamental fairness. 

Further, restricting it to U.S. senators — not even including House members, let alone “ordinary” citizens — makes a mockery of the equal protection clause of the U.S. Constitution. House Judiciary Committee Chair Jim Jordan (R-Ohio), who believes that Boasberg’s non-disclosure order was not justified, put it thus: “Frankly, I would just say that we should pass laws for Americans, not for any special category.”

Putting a bill that was “way out of line” into the appropriations package at the last minute, Speaker Mike Johnson (R-La.) told reporters, was not “a smart thing” for Thune to do. The House did not strip the provision out of the legislation, he emphasized, because it would then have had to return to the Senate, delaying the end of the federal government shutdown. 

On Nov. 19, the House voted unanimously to repeal the measure. The legislation now returns to the Senate, where repeal is much less certain. If the bill reaches the White House, President Trump will have to decide whether to let his archenemy, Jack Smith, off the hook — this time. 

Las Vegas has yet to set odds on the fate of the bill. That said, it’s a safe bet that the Senate’s reputation won’t be restored any time soon. 

Glenn C. Altschuler is The Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University.