Senate Republicans added insult to injury in the bill to end the shutdown

Half a million or a million dollars or more for having someone use legally acquired limited phone data in a legitimate investigation. But not a penny more to keep Obamacare affordable.

Autocrats care more about taking care of themselves and their cronies than they do about attending to the needs of the people. Without accountability, they feel free to line their pockets through secret deals and overt corruption. Autocracy and shamelessness go hand-in-hand.

But this autocratic impulse is not limited to a single strongman or head of government. It spreads. One sign that autocracy is taking root is that other officials start to imitate that impulse.

Photo by Andy Feliciotti on Unsplash

That is why what the Senate Republicans did with the version of the bill to end the government shutdown that they passed on Nov. 10 is so worrisome. They not only refused to take action to prevent steep premium increases for people obtaining health insurance under the Affordable Care Act or to restart the flow of benefits under the Supplemental Nutrition Assistance Program, but they also inserted a provision that could enrich several of their members.

That provision, as Politico noted, “could award senators hundreds of thousands of dollars for having their phone records collected without their knowledge as part of a Biden-era investigation.”

It states that “electronic services providers must notify a Senate office if the provider receives a request to disclose the data from that senator, or senator’s office … (and) stipulates that the provider cannot be barred from notifying the senate office by a court order.” The provision was a direct response to a ruling by Chief Judge James Boasberg of the District of Columbia District Court that “would have precluded phone providers from notifying the senators that their data was requested by federal law enforcement officers.”

At first glance, all that seems reasonable enough. But the Senate Republicans did not stop there.

They used the opportunity afforded by the bill to reopen the government “to provide a cash bonus” for those senators whose phone data had been used as part of Special Counsel Jack Smith’s investigation of the events surrounding the Jan. 6, 2021, insurrection. “If the provision included in the bill is violated,” Politico explained, “the Senator can sue the federal government, and if the lawmaker succeeds in the case, the person will be awarded $500,000 or more for each violation by the government.”

Smith obtained phone records in 2023. They contained information about which numbers participated in a phone call and the duration of the call. They did not reveal the contents of any conversation.

Eight Republican senators (Lindsey Graham, Bill Hagerty, Josh Hawley, Dan Sullivan, Tommy Tuberville, Ron Johnson, Cynthia Lummis, and Marsha Blackburn) had their phone records subpoenaed as part of Smith’s examination of Trump’s efforts to overturn the 2020 election.

The new legislation is retroactive, covering violations the period starting in 2022. It opens the door for senators to sue for past data collection.

Graham has already said that he would “definitely” sue, and “if you think I am going to settle this thing for a million dollars? No. I want to make it so painful no one ever does this again.”

Not bad. Half a million or a million dollars or more for having someone use legally acquired limited phone data in a legitimate investigation.

But not a penny more to keep Obamacare affordable.

Right out of the autocratic playbook.

The bill that passed in the Senate runs in parallel with a president who tears down the East Wing of the White House to build a $300 million ballroom and who, our own Jennifer Rubin explained, “revel(s) in grotesque display of Gatsby-like opulence, deliver(s) tax cut bonanzas to millionaires and billionaires, and scoop(s) up crypto windfalls.”

The New Republic’s Joe Conason put it this way: “Like every modern autocrat, Trump is preoccupied with asserting authoritarian power to advance his illicit accumulation of wealth. He, too, will abuse state power to enrich his backers and cronies, even when that may mean impoverishing everyone else.”

“Indeed,” Conason says, “a central message of his new regime is that such grasping must be valorized and protected—never questioned, impeded, investigated, or prosecuted.”

The kind of self-dealing displayed by the president is unprecedented in American history. Now, his Senate allies, in their own effort to valorize “grasping,” have joined him in doing something so unprecedented as to display their utter contempt for the institution in which they serve and for the American people.

In earlier times, sure, there was corruption in the halls of Congress. Representatives and senators took bribes or used their office to enrich themselves.

This time, what the Senate Republicans have done is another troubling example of the spread of the autocratic tendency to steal from the poor and give what they take to the rich throughout the MAGA-dominated federal government. However, much more than money is at stake.

The provision regarding notification to senators that their phone data is being sought by an investigative body also serves a political purpose. It is part of MAGA’s obsession with trying to discredit Jack Smith and the investigation he led.

It is a form of whataboutism. The Senate Republicans are using the new provision of the recently passed continuing resolution and appropriations bill to say, “What about what Jack Smith did to Republicans?”

Politico suggested that “the revelations that Smith collected phone records for several Senate Republicans … emboldened GOP lawmakers, prompting them to deflect Democrats’ accusations of weaponization of the Trump Justice Department and claim that President Joe Biden’s DOJ was looking to target conservatives.”

Sen. Charles Grassley (R-Iowa) called Smith’s actions “an unconstitutional breach,” which, in his view, were “arguably worse than Watergate.” Explaining why senators need the kind of protections contained in the continuing resolution, Senate Majority Leader John Thune (R-S.D.) echoed Grassley.

He argued that “The abuse of power from the Biden Justice Department is the worst single instance of politicization our country has ever seen,” Politico reported. “I think it is Joe Biden’s Watergate, and the statutory prohibition needs to have real teeth and real consequences.”

Real teeth and real consequences might mean that the law would act as a deterrent to discourage service providers from giving senators’ phone data in the future. If the law were only forward-looking, that would be one thing.

That it applies retroactively suggests that it serves the kind of autocratic purposes I’ve already mentioned.

It might even be too much for Republicans in the House of Representatives. Rep. Austin Scott (R-Ga.) called out his Senate colleagues. “What they did is wrong,” Scott said. Rep. Chip Roy (R-Tex.) agreed. He called the Senate action “self-serving” and “self-dealing.”

House Speaker Mike Johnson (R-La.) joined them. He observed that it was “way out of line.”

He promised that the House would take a vote to reverse the provision allowing suits and awards of $500,000 for eight senators and said that he expected our colleagues in the Senate “to do the same thing.”

Whatever happens in the House, Americans should have learned an important lesson about the dangers of the autocratic impulse and its potential for spread. We must remain vigilant and prepared to use our votes to send a clear message to those who prioritize their own interests over ours.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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