The legislation to end the federal government shutdown contains a specific framework for at least eight Republican U.S. senators, including Cynthia Lummis of Wyoming, to receive millions of dollars due to FBI spying in Special Counsel Jack Smith’s probe related to the Capitol riot on Jan. 6, 2021.
The language — a last-minute Senate amendment that stunned House Republicans — allows any senator to sue the government for $500,000 for each “instance” of data collection in Smith’s probe.
Early this month, the Senate Judiciary Committee released an FBI document showing the phone records of Lummis and seven other Republican senators were scooped up in Smith’s investigation, dubbed Arctic Frost.
Lummis has repeatedly expressed outrage over the spying during the Biden administration and has asked President Donald Trump’s Justice Department in writing for a full accounting of it.
Joe Jackson, a Lummis spokesman, told Cowboy State Daily on Wednesday that Lummis did not author the amendment in the shutdown-ending bill and that she “hasn’t really considered” whether she would sue for damages in accordance with the language, if it does become law.
House Republicans said they were blindsided by the amendment which, according to Congress’s legislative analysis and bill-tracking unit, was proposed by Senate Majority Leader John Thune, R-South Dakota, and rode on another amendment sponsored by Senate Appropriations Committee Chairwoman Susan Collins, R-Maine.
Final Senate passage of the bill was Monday night.
“This language was not shared with the House of Representatives before it was put in the bill, and I personally agree that it should be removed,” U.S. Rep. Austin Scott, a Georgia Republican on the House Rules Committee, said Tuesday at a marathon meeting held by the panel ahead of an anticipated floor vote Wednesday.
Other Republicans on House Rules voiced criticism as well.
U.S. Rep. Morgan Griffith, R-Virginia, called the late addition “egregious,” and U.S. Rep. Chip Roy, R-Texas, added: “I don’t like the provision.”
Scott said the provision would not get through Congress if it moved as standalone legislation.
“They should vote on this in the light of day,” Scott said of the Senate. “If they think this is the right thing to do, they should have a committee meeting and a straight up-or-down vote on it.”
Added U.S. Rep. Rosa DeLauro, D-Connecticut: “Whether or not you believe what happened on January 6, by God, how the heck can we just airdrop this stuff in the bill with no one knowing about it?”
Senate Republican Whip John Barrasso of Wyoming told Cowboy State Daily in an email Wednesday: “We’ve seen an outrageous abuse of power by the FBI, including recently when it spied on Senator Lummis and other lawmakers.
We inserted this provision into the appropriations package to protect against any future weaponization of government against members of the Senate.”
Barrasso’s office did not respond to follow-up questions about the lack of transparency.
The House passed the original bill and must vote again because of various Senate changes. It was unclear whether any House Republicans would vote to torpedo the bill to end the shutdown on account of the potential windfall for senators.
The Rules Committee, which sets the procedure for House floor votes, met for nearly seven hours Tuesday night and early Wednesday. The full House had not voted Wednesday as of 5 p.m. ET (3 p.m. in Wyoming).
U.S. Rep. Jim McGovern, D-Massachusetts, in Wednesday floor remarks called the Senate provision a “corrupt kickback.”
Private Right Of Action, Retroactive
The amendment creates for senators a private right of action to sue the government in connection with the Smith probe, which began in April 2022. The amendment works retroactively, so that any data collection on senators that occurred on or after Jan. 1, 2022, is subject to $500,000 in statutory damages.
Scott — the House Rules member — said the result could include multiple half-million-dollar payments for a single senator, because lawmakers typically use more than one phone and email address.
Jackson, the Lummis spokesman, issued a statement to Cowboy State Daily that says in full:
“Senator Lummis did not author this language. However, we won't forget that the [Justice Department] and FBI under Joe Biden violated the Constitution's separation of powers by spying on Republican United States senators, without their knowledge.
“These senators, including Senator Lummis, were surveilled by the Biden administration because they support President Trump and the America First agenda. We must not allow this politicization of federal agencies to become routine.
“Liquidated damages provisions are commonly used and this provision is the only way to hold Jack Smith and wrongdoers accountable.”
Later, Jackson told Cowboy State Daily that Lummis "hasn't really considered" whether she would seek reparations.
The senators besides Lummis named in the recently unveiled FBI document are Marsha Blackburn and Bill Hagerty, both of Tennessee, plus Lindsey Graham of South Carolina, Josh Hawley of Missouri, Ron Johnson of Wisconsin, Dan Sullivan of Alaska and Tommy Tuberville of Alabama.
Started As ‘Clean’ Continuing Resolution
The normal appropriations process involves 12 annual funding bills that go through House and Senate committees, then to the floor of each chamber. Later, differences are resolved in a House-Senate conference.
When Congress fails to agree on these bills before Oct. 1 each year — the start of the federal fiscal year — lawmakers use a common tool to keep the government funded in the short term. It is called a continuing resolution, or CR, designed to prevent a shutdown.
The House in September passed a CR that was clean — meaning, it had no policy riders. Senate Democrats blocked it repeatedly, triggering — and then prolonging — the shutdown as they demanded health care language be included. Eventually enough of them broke ranks to pass it as amended without getting the Obamacare tax credit extension they wanted.
As amended by the Senate, the CR would extend funding through January, a longer period than the House version had. In addition, the CR is now paired with three of the Senate’s 12 full-year appropriations bills. The full Senate months ago passed the trio bills with broad, bipartisan support but the House had not weighed in.
The amendment allowing senators to sue over data collection was tacked on to one of these three Senate full-year funding bills that is now moving as a package with the CR, awaiting House floor action. Specifically, the amendment is attached to the bill funding the legislative branch of government.
The other bills fund programs related to agriculture, defense, veterans and more.
Sean Barry can be reached at sean@cowboystatedaily.com.
