Corruption in Plain Sight: The Shutdown Bill Includes Staggering Payouts for MAGA Senators
A Senate candidate should sue to stop this attempt to rob U.S. taxpayers
It is by now a cliché that every day brings a new outrage, but this one is particularly shocking. The continuing appropriations bill (H.R. 5371) to end the shutdown is nearly 400 pages long. The bill’s length may explain how an unidentified Senator was able to insert a provision that, if not challenged and blocked, will result in a payout of at least $500,000, if not many millions of dollars, to any Senator whose phone records were legally subpoenaed by the FBI during its investigation of the January 6 attack on the U.S. Capitol. This is stealing taxpayer money out of the U.S. Treasury and forking it over to a few Republican Senators—for them to put directly in their pockets or fund their campaigns—based on the lie that the January 6 investigation was illegitimate and that the real victims were those who conspired to overthrow the government of the United States.
This post explains that the Congress is paying huge sums to a few Republican Senators based on government conduct that was perfectly legal at the time of the FBI’s investigation. The new Senate-only rules create a shocking double standard as between Senators and everyone else. It is unconstitutional for numerous reasons. A Senate candidate would have standing to sue to block this new enactment because it creates a competitive advantage for incumbents and harms challengers. Candidates can and should sue to protect themselves and draw attention to this wrongdoing.1
Special counsel Jack Smith lawfully investigated President Trump’s attempt to overturn the 2020 election
The story begins with the President’s effort to overturn the 2020 election. After the January 6 attacks on the Capitol, special counsel Jack Smith and the FBI investigated and pursued prosecution of President Trump and the rioters who broke into the Capitol building, as explained in great detail in the special counsel’s report. Trump and his allies called Republican Senators as part of their effort to prevent certification of the presidential election results. The FBI subpoenaed and analyzed “limited toll records” for certain Senators. Toll records usually show what number was called and when, and for how long any resulting telephone connection lasted.
In 2023, the FBI obtained toll records for eight Senators’ phones during the period from January 4 to January 7, 2021 (the period immediately before and after the attack on the Capitol). Nothing about the subpoenas or lack of contemporaneous notice to affected Senators was illegal. The Stored Communications Act expressly provides that a government entity that obtains tolling records by subpoena “is not required to provide notice to a subscriber or customer.” 18 U.S.C. § 2703(c)(2), (c)(3). The Act distinguishes between the content of communications (what was said or written), and information about the call (tolling records). In sum, when the FBI obtained toll record information pursuant to a subpoena, the government had no obligation to give notice to the Senators.
After Trump took office in January 2025, MAGA Senators saw an opportunity to rewrite history. With the Justice Department under Trump’s control, they obtained FBI records concerning the investigation into the coup attempt and began to issue press releases arguing that investigation itself was improper. Inevitably, Senator Grassley called the FBI’s conduct in obtaining toll records “worse than Watergate.” But the special counsel and FBI had nothing done wrong—rather, they properly investigated the President’s conduct in seeking to block certification of the electors. Weirdly, Grassley complained that the FBI incurred $16,000 in travel expenses during its investigation—an amount that is trivial in comparison with the amounts he proposes to put directly into the pockets of his allies.
President Trump would soon demonstrate how Senators could do more than issue press releases. He issued patently unconstitutional executive orders targeting law firms. When the law firms caved, he suggested that the settlements themselves proved wrongdoing by the law firms. He also brought a frivolous lawsuit against Paramount in his personal capacity. When Paramount caved, he put the settlement money in his pocket, and again, he and his allies claimed that the settlement proved wrongdoing by Paramount. The Republican Senators have now utilized Trump’s technique of making up a bogus lawsuit to pay themselves, which they snuck into the appropriations bill.
Although the special counsel’s search was lawful, the shutdown bill authorizes each MAGA Senator whose toll records were subpoenaed to claim millions.
The recently-enacted continuing appropriations bill creates special Senate-only rules. Whereas ordinary people do not receive notice if the government obtains their toll records by lawful warrant or subpoena, the bill provides that if a service provider or the office of the Sergeant at Arms receives legal process seeking any communications data for a Senate office, including metadata/toll records, the recipient must provide notice to the affected Senate office. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(c)).2
Next, the bill provides that a Senator may sue the United States for each violation of the new law. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)). The law defines “violation” to mean (1) obtaining a non-disclosure or sealing order that prevents notification of a Senator as required by the new law, and (2) acquiring, subpoenaing, searching, accessing, or disclosing Senate data without notice being provided as required by the new law. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(1)(B)). One might think that it was impossible to violate the new law before it existed, and one would be right, but that logic has not stopped the Senate from making the law retroactively applicable to subpoenas and searches occurring on or after January 1, 2022. Continuing Appropriations, 2026, § 213(b)(1).
The new law provides that a Senator may recover $500,000 “for each instance of a violation of this section.” Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(3)(A)(i)). The word “instance” is defined to mean:
“each discrete act constituting a violation of this section, including each individual—
(i) device, account, record, or communication channel subject to collection in a manner in violation of this section;
(ii) nondisclosure order or judicial sealing order sought, maintained, or obtained; or
(iii) search conducted.”
Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(1)(A)).
Under these definitions, if the special counsel obtain toll records for more than one telephone number within a Senate office, the individual Senator could collect $500,000 for each phone number. An enterprising Senator might also allege separate violations for “collection” and “search” of records for the same phone number. A lawyer for the Senators will view his or her job as maximizing recovery and will be coming up with imaginative theories about how to multiply the number of violations into the dozens. I expect that Senators will be claiming millions of dollars under this provision, not a measly $500,000.
The new law establishes a two-tiered legal apartheid in which Senators are in a privileged class of their own.
If you are looking for a declaration that MAGA Senators think they are better than everyone else, it would be hard to find a better example than the law that they have just rammed through the process. Under the new law, they have rights that nobody else has and collect statutory damages that are at least 50-fold greater than what an ordinary American would collect for a far more substantial intrusion.
If Senators believe that a person suffers $500,000 in damages each time the government obtains their toll records, then why should they be the only ones in America who can recover that amount? Senators are important, but remember, this is not a fine for breaking a law (one that didn’t even exist at the time of the searches), this is supposedly compensatory damages for emotional or other intangible harm suffered by the individual plaintiff. The Senators are saying to the world that their individual harm is at least 50 times more important than harm suffered by everyone else. And even that comparison doesn’t work, because the Senators are awarding themselves money that never would be available to an individual for the same government conduct (obtaining toll records)—so their recovery is infinitely greater than what everyone else could obtain in their situation.
The shutdown bill’s payout for MAGA Senators is unconstitutional
The new law creates a retroactive right to payment based on conduct that has already occurred and awards enormous sums that are completely untethered to any harm or actual damages. In fact, none of the MAGA Senators suffered an actual damages whatsoever, as demonstrated by the fact that the conduct at issue was perfectly legal at the time it occurred and remains perfectly legal with respect to every American except for them. If the Senators had suffered any cognizable harm under existing law, they could have brought a lawsuit based on that law. Instead, they enacted a new provision for themselves alone, which bestows a gift of at least $500,000, and probably millions, upon each individual MAGA Senator who claims it.
The new law is unconstitutional under Article I, Section 6, which provides in part:
“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”
This provision reflects that all Senators should receive the same pay because it refers to “a” singular Compensation, not many different compensations. By creating a scheme in which MAGA Senators can grab millions from the Treasury that is unrelated to any damages, they have increased their own compensation beyond that which is provided by law for compensation of Senators.
The same section of the Constitution shows that Congress was not allowed to conspire with the President to award higher pay to certain individual Senators. It provides that no Senator may be appointed to a civil office that was created during the Senator’s term, or for which the “Emoluments” of that office have been increased during the Senator’s term. U.S. Const. art. I, § 6. This provision prevents Congress from increasing the pay for a particular office to $500,000 per year or more and then securing appointments to that office. It should be clear that Senators cannot circumvent the Constitution by creating “statutory damages” of $500,000 and then awarding themselves a right to claim those damages.
At a minimum, even if Congress could award millions of dollars to a subset of Republicans (it cannot), the Twenty-Seventh Amendment provides:
“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
The new giveaway in the shutdown bill is compensation for Senatorial services because is available only to Senators and, again, is unrelated to any harm because there was none. It is just a self-dealing payout. At a minimum, the payout cannot go into effect until after the next election cycle in 2026.
Senate candidates have standing to sue to block the attempted robbery of U.S. taxpayers
Laws that inflict harm on U.S. taxpayers are difficult to challenge because paying an unfair amount of tax to enrich a few Senators is not usually a basis for lawsuit in federal court. (If paying taxes were a sufficient basis to challenge laws, then every taxpayer would have standing, and the government would get sued too much.) But a candidate for Senate office running against one of the MAGA Senators may have standing based on the competitive harm inflicted by the new law.
Suppose Congress passed a new law that said that incumbent Senators shall each receive $500,000 in taxpayer funds for their campaigns, while challengers receive nothing. This would create a $500,000 advantage for the incumbent, which he or she could use to buy campaign ads, pay for staff, etc. A law that unfairly creates a $500,000 advantage for incumbents harms challengers and political parties to the extent that they must use or divert additional economic resources to campaigns against such incumbents. A candidate also faces competitive harms arising from laws that could affect the outcome of an election, including a law that specifically grants a huge financial advantage to a competitor.
The eight MAGA Senators that stand to benefit from the new law are:
Lindsey Graham (SC)
Bill Hagerty (TN)
Josh Hawley (MO)
Dan Sullivan (AK)
Tommy Tuberville (AL)
Ron Johnson (WI)
Cynthia Lumis (WY)
Marsha Blackburn (TN)
Of this list, Graham, Haggerty, Sullivan, and Lumis are up for reelection in 2026. To the extent that they are running again, a challenger should file suit immediately to block their receipt of additional and unlawful campaign funds under the new law.
Others have provided excellent reports on the new law. Here’s one below. This post aims to go beyond these reports by providing more detailed review of potential multi-million dollar awards under the plain text of the law; the reasons why it is unconstitutional; and a preliminary suggestion of reasons why a Senate candidate would have standing to challenge this law.
The new law for the benefit of certain Senators appears in Section 213 of the Continuing Appropriations bill, which amends 2 U.S.C. 6628. I’ll include citations above without further hyperlinks to the bill.