Congress Should Fix the Senate Cause of Action Measure, Not Scrap It

Accountability in Washington, D.C. is long overdue. For years, bad actors wielding the force (including the badge and gun) of the federal government have evaded it. Now, though, the Trump Administration is aggressively cleaning house – but firing people is not always enough. Legal accountability carries real weight.

Not long ago, shocking news broke that Biden’s ostensibly appointed special counsel, Jack Smith, and his team had been handed an FBI investigation code-named Arctic Frost, which had been surveilling sitting United States Senators (and conservative organizations) who dared to question the procedural integrity of the 2020 presidential election. In response, the ACLJ teamed up with a number of the Senators whose data was surveilled and submitted FOIA requests to the DOJ to help expose the corruption. That was an important tool to use, but it’s not enough.

Members of Congress are not just random government officials who happen to be Members of Congress to fill a seat. No, Congress has a constitutionally assigned role in the certification process following a presidential election, and the 2020 election certainly was not the first time Members of Congress had questions or expressed doubt over election results. But now, in true Trump Derangement Syndrome fashion, this time, they were investigated for potentially committing crimes. Smith and his team were able to search these Senators’ communications without anyone knowing.  Secrecy is important – when there are actual crimes being investigated. But abusing that kind of power for political gain is egregious and immensely damaging. Not just for the victims, but also for the rule of law and a Department of Justice with desperately low credibility in the aftermath of the Left’s weaponization of the most powerful law enforcement agency in the world. We need accountability.

As the nation’s legislature, Congress has an important role in the accountability process, and it just took a big, much-needed, step in the right direction. In the recent spending bill that passed, and which President Trump signed into law Wednesday night to end the government shutdown, Congress included a provision that directly created a path for true accountability. The new measure amends the law to require that Senators be notified when an investigation attempts to access his or her digital communications. And if a violation occurs, expressly creates a cause of action – allowing Senators to file suit and seek relief directly against the federal government. 

While this measure only applies to Senators, that’s simply because the Senate only amended the laws governing access to Senate data, something either chamber of Congress is free to do. And while the new provision does not apply to regular citizens, recall that the data that Smith’s team was pilfering through directly related to the congressional Speech and Debate Clause which is protected activity – something that the lawyers for Senator Cruz’s telecom carrier immediately recognized - and therefore rejected access.

It's noteworthy that the provision does not prohibit law enforcement from investigating Senators or even seeking their data from carriers - this is key. It simply requires that the Senators be notified (unless a Senator is an actual target of an investigation, in which case secrecy is still allowed). It's also noteworthy that the provision isn’t limited to past misconduct bySmith’s team (although it was made expressly retroactive to 2022, when Arctic Frost escalated), but it also now applies going forward as well. Now, law enforcement is on notice. This protects Senators on both sides of the aisle and establishes a nice template for future expansion of accountability measures beyond the Senate – again, something we support.

Something else we like about the measure is that it makes it crystal clear that the liability for snooping into Senate data does not replace liability for constitutional violations, including but not limited to the Speech and Debate Clause. To say there are glaring Fourth and First Amendment concerns here puts it too mildly. Don’t forget that those constitutional protections are available to every American.

Then there’s immunity. Because the United States government is a sovereign entity, the government, and to various extent individuals acting on behalf of the government, possess immunity. No one can successfully sue the U.S. government unless Congress has waived that immunity, very specifically, to allow the lawsuit and also the recovery of damages. Even the clearest constitutional violations require congressional permission to pursue in court (e.g., 42 U.S.C. § 1983). As part of the new cause of action (lawsuit), Congress did just that, and it also waived the absolute and qualified immunity of the individual bad actors involved, another critical step. It also allows for damages of at least $500,000 for violations. While that amount seems steep, we must understand the point, in keeping with the theme of accountability, of such a large amount:  disincentives for future bad acts. That kind of a price tag sends a clear and strong message. Don’t do it.

Unfortunately though, that dollar figure for damages has proven to be a distraction. That’s a lot of money. But it never really was about money for Senators – it was about accountability for bad actors, And yes, money talks. Indeed, Senators have spoken to us and expressed a desire to sue for accountability purposes, not monetary. Thankfully, with this provision, they can do that. The measure expressly authorizes courts to award declaratory and injunctive relief for violations, and though the lawsuit process, Senators will have unique access to the evidence through the discovery process, and that results in more sunlight (the best disinfectant) upon corruption. Let’s not take a step backward when this accountability tool can be fine-tuned to be the most effective consensus building tool possible.

We shouldn’t let the damages provision distract us from the fact that accountability must be implemented for years of political witch-hunts, shrouded in secrecy, that even targeted sitting United States Senators exercising their constitutional duties. The measure provides an opportunity to take one step forward toward that accountability. Speaker Johnson has announced his plan to hold a vote in the House on this provision next week. The fix is simple:  Keep the measure, but simply strike the damages component from it. The vital components that remain still matter and they’re still needed. We respectfully urge Congress to fix this provision, don’t scrap it.

We also agree that broader and more comprehensive reform of the law is desperately needed, and we urge Congress to prioritize this for all Americans. And we recognize this provision is limited and won’t expose all of the Left’s bad acts to sunlight. But it’s a start and a good one at that.