WASHINGTON — Congress flouted several legal principles with an unusual provision creating a streamlined path only for senators to file lawsuits and collect at least $1 million each for government actions in the previous administration, experts and critics say.

That includes a constitutional limitation on lawmaker pay increases, creating a new award applied to past actions and giving a right to file lawsuits on a topic to a group of lawmakers only, those experts say.

In a different context, such a provision might be challenged as unconstitutional. But, in part because the government would be paying the damages and the provision limits defenses, it’s unclear whether and how the provision could be challenged in court and who would do it.

The provision, part of the spending package passed this week to reopen the federal government, would allow senators to file a civil lawsuit against the United States for at least $500,000 per instance if the government searched or subpoenaed their data without notifying them or sought a nondisclosure order or judicial sealing to prevent notification.

The provision almost certainly relates actions taken by Special Counsel John L. “Jack” Smith over the course of his prosecution of President Donald Trump’s attempt to overturn his loss in the 2020 election — particularly because it explicitly applies to searches after Jan. 1, 2022.

The provisions also strips away a typical legal shield for government officials who are performing job duties, and it does not mention if those federal officials had followed the law that applies generally to all similar searches of Americans’ phone records.

Bennett L. Gershman, a law professor at Pace University who specializes in corruption investigations and prosecutorial misconduct, said laws with retroactive provisions are normally unconstitutional because they violate due process.

This provision allows senators to file claims for actions taken by federal investigators that were legal at the time they took them, he said. “You have to know that what you’re doing and be guided by what the law tells you you can do today,” Gershman said.

David Super, a professor at Georgetown Law, said the changing of standards is like “passing a law saying you owe $500,000 if you weren’t wearing a top hat last week. Well, you didn’t know to wear a top hat last week. How would you know to wear a top hat last week?”

If the cause of action was against a state, a corporation or a private individual, it would be unconstitutional as a retroactive imposition of penalties, Super said. But Congress can wave that away by specifying the government as the defendant, he said.

And the senators would have a strong case under the provision, he said. “This is basically just an appropriation” to these senators, “raising their pay,” Super said. “That’s all it is.”

That also raises concerns under the 27th Amendment, which states that no law can change lawmaker compensation until an election and the seating of a new Congress. The bill language also changes the rules retrospectively to give senators money they had no previous right to, Super said.

“Whether you call the money salary or you call the money damages, it’s a large increase in compensation for being senators,” Super said.

Gershman said members of Congress seemed to be acting to “feather your own nest” by passing legislation that was effectively a payout for themselves.

“I know Congress does crazy things, but this is one of the most bizarre provisions I think I’ve ever seen,” Gershman said.

As it stands, there are at least 10 GOP senators whose data are said to have been collected as part an investigation, code named “Arctic Frost,” that began in the spring of 2022: Marsha Blackburn and Bill Hagerty of Tennessee; Josh Hawley of Missouri; Lindsey Graham of South Carolina; Cynthia Lummis of Wyoming; Dan Sullivan of Alaska; Tommy Tuberville of Alabama; Ron Johnson of Wisconsin; Ted Cruz of Texas and Rick Scott of Florida.

Graham said at a news conference Wednesday that he would be filing a lawsuit. “And if you think I’m going to settle this thing for a million dollars? No. I want to make it so painful no one ever does this again,” Graham said.

The House Judiciary panel’s ranking member, Rep. Jamie Raskin, D-Md., told the Rules Committee he thinks the provision violates constitutional protections that require equal protection under the law, because it is only creating special privileges for the 100 Americans in the Senate.

“It’s not even for the second-class citizens over in the House of Representatives,” Raskin, previously a constitutional law professor, said.

A legal test for that is “rational basis” review, which generally states a government needs to show a law is rationally related to a legitimate purpose.

“On what rational basis could we say that the grand jury and a federal judge could send out precisely these orders for the pen register, to all Americans, members of the House, members of state legislatures, governors, mayors, but not the U.S. Senate,” Raskin said.

Grand juries and judges subpoena these call records tens of thousands of times a year, Raskin said, but the Senate has not suddenly turned into “civil libertarians saying they want to change the law so grand jury subpoenas can’t go out for any Americans unless they’re notified first.”

Speaker Mike Johnson announced plans Wednesday to pursue legislation next week that would repeal the provision.

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