Congressional Democrats Challenge Data Privacy Protections for Senators Only

Warren Davidson criticizes Lindsey Graham over provision limiting financial data lawsuit standing

House Republican Attacks Senate-Only Data Privacy Provision as Inequitable and Self-Serving

Representative Warren Davidson of Ohio launched a pointed attack Friday against Senator Lindsey Graham of South Carolina over a controversial provision embedded in recent continuing resolution legislation that grants senators–but not House members or ordinary citizens–the right to sue the federal government for unauthorized access to their electronic data. The provision, inserted by Senate Majority Leader John Thune into the shutdown-ending continuing resolution passed the previous week, was specifically crafted to benefit senators targeted during former special counsel Jack Smith’s investigation into President Trump’s efforts to overturn the 2020 election results.

The Inequitable Provision and Constitutional Concerns

Davidson’s criticism emphasized the fundamental fairness problem created by the carve-out: “This Senator wants the Constitution to protect him (Senators), but no one else. Literally no one other than a United States Senator could sue for damages. The House unanimously opposed this corrupt carve out for Senators. Protect every American citizen. End 3rd party doctrine.” The House voted 426-0 to reverse the provision’s language, yet Senate Republicans showed little indication they would reconsider the measure. Legal scholars examining data privacy issues, including those at the Electronic Frontier Foundation, have documented the broader third-party doctrine concerns that underlie such debates.

Background: Smith Investigation Phone Records

Senate Judiciary Chair Chuck Grassley disclosed in October that Smith’s investigation obtained phone records of nine members of Congress. Under the current provision’s structure, eight senators on that list possess legal standing to sue for damages, while Representative Mike Kelly of Pennsylvania–the only House member whose records were obtained–cannot access this remedy. This disparity crystallizes the provision’s inequitable design.

Graham’s Expansion Proposal and Broader Implications

Senator Graham has proposed expanding the class of individuals granted standing to sue under the provision to include “any private group” targeted by Smith during his investigation. Graham argued that “all of us who were wronged need to have a remedy to that wrong.” However, expanding the provision raises complex questions about appropriate legal remedies for government overreach. Organizations focused on privacy protection, including those tracked by the American Civil Liberties Union, have noted the tension between providing recourse for genuine wrongs and creating special legal privileges for political actors.

Institutional Questions About Equal Protection

The episode highlights broader institutional tensions in Congress regarding equal treatment of members from different chambers. Davidson’s criticism reflects concerns that senators were using their procedural leverage to create self-serving legal protections unavailable to their House counterparts. The provision’s fate remains unclear, as Senate leadership appears unconcerned about the House’s unanimous opposition.