Republicans are at odds over an effort to unwind a controversial provision tucked into the bill to reopen the government that would allow senators to sue for substantial sums if they aren’t notified when federal law enforcement seeks their phone records.
The provision has fueled classic tensions between the House and the Senate, prompted an effort to repeal the new law, divided Republicans, and started to become fodder for primary opponents.
Signed into law by President Trump last week, the unusual addition to the spending bill fundamentally changes how investigators must treat the 100 members of the Senate. And because it is retroactive to 2022, it also opens the door for ten GOP senators whose records were subpoenaed by special counsel Jack Smith to seek a minimum of $500,000 in compensation.
House Republicans were blindsided by and furious about its inclusion. Speaker Mike Johnson (R-La.) said after the bill passed that he was “very angry” about the lawsuit provision, and that it was “way out of line.”
“We had no idea that was dropped in at the last minute,” Johnson said.
Rep. John Rose (R-Tenn.) swiftly introduced legislation to strike the provision, saying that “two wrongs don’t make a right.”
“The American taxpayer has suffered enough because of the last administration,” Rose wrote on X.
“It is shameful to ask them to shoulder the burden of paying U.S. Senators at least HALF A MILLION dollars because the FBI went rogue under Joe Biden.”
The retroactive measure is a response to Sen. Chuck Grassley (R-Iowa) revealing last month that Smith’s “Arctic Frost” investigation into efforts to overturn the 2020 election sought phone records from several senators and at least one House member, Rep. Mike Kelly (R-Pa.), whose staffer was involved in trying to help deliver names of fake electors.
Language slipped into the government-reopening funding deal crafted by the Senate members of that chamber — but not House members — sue for $500,000 each if their records were subpoenas or obtained without notifying them first.
“Do I have the same — for whatever reasons — do we have the same privileges as the Senate does? Apparently we don’t,” Kelly, the only House member whose records were also subpoenaed as part of the investigation, told Erie News Now. “If it was a serious problem for the senators, why wouldn’t it be a serious problem for members of the House?”
A source familiar with the bill’s crafting said there was a strong appetite among Republicans to respond to the Arctic Frost investigation, and that it applies only to senators because it amends an existing statute applying to senators. There is a carve-out if material is requested because the senator is the target of a criminal investigation.
Still, it’s a massive departure from ongoing law enforcement practice, where investigators are able to obtain a court order to shield notification of those whose records were subpoenaed, affording that privilege to only 100 people in the U.S.
The provision would allow senators to sue both for having their records sought without their notification and for any sealing orders to bar disclosure, opening the door to a million dollar payout.
While Rep. Greg Steube (R-Fla.) voted against the funding package over the provision, nearly all other Republicans sent the bill to Trump’s desk rather than removing it to avoid further delays in re-opening the government.
Now, Republicans are trying to clean it up. The House will vote this week on a bill to repeal the measure included in the funding bill. The legislation is expected to get broad support, coming up under a fast-track suspension of the rules process that requires two-thirds support to pass.
But Johnson said that while he expressed his dismay about the provision to Senate Majority Leader John Thune (R-S.D.), he does not have a commitment that the bill will come up in the Senate.
It appears likely that senators would object to the provision moving quickly in the upper chamber.
At least one of the affected senators, Sen. Lindsey Graham (R-S.C.), is planning to take advantage of the new law. Graham told reporters last week he will “definitely” sue over the issue.
“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,” said Graham, whose records were sought after he called Georgia Secretary of State Brad Raffensperger with questions about the state’s voting process.
Sen. Tommy Tubberville (R-Ala.) said if he doesn’t see consequences for Smith and the judge that approved the sealing order, he “will sue the living hell out of every Biden official involved in this to make sure this NEVER happens to a conservative again.”
But the issue is quickly becoming a political liability for the Republican senators, and becoming an issue in primary elections.
Graham primary challenger Paul Dans, who previously led the “Project 2025” policy blueprint at the Heritage Foundation, went on the attack on social media.
“Americans are outraged that Lindsey Graham would hijack the Re Opening of the Government to stuff millions in his pocket,” Dans said.
And the vocal outrage from Rose, the Tennessee congressman who pushed the House repeal bill, comes in the context of him running against Sen. Marsha Blackburn (R-Tenn.) for governor.
Scrutiny over the measure seemingly pushed Blackburn to change her tone about the issue. While she initially said she intended to sue, she later wrote on X that she supported House efforts to repeal the provision.
“As I have previously said, this fight is not about the money. It is about holding the left accountable for the worst weaponization of government in our nation’s history,” she wrote.
Other senators who could take advantage of the new law were more circumspect without closing the door to filing suit.
Sen. Ron Johnson (R-Wis.), whose office tried to deliver fake elector certificates on Jan. 6, said he supported the provision as “a deterrent to prevent future misuse”of federal power.
“I have no plans at this time. If I did sue, it would only be for the purpose of using the courts to expose the corrupt weaponization of federal law enforcement by the Biden and Obama administrations,” he said in a statement.
“With the full cooperation in our congressional investigations from the Trump DOJ and FBI, that shouldn’t be necessary.”
Still, Sen. Josh Hawley (R-Mo.) called the move “a bad idea” while Sen. Bill Hagarty (R-Tenn.) said “I do not want and I am not seeking damages for myself paid for with taxpayer dollars.”
Sen. Dan Sullivan (R-Alaksa) said through a spokesperson he did not learn of the provision beforehand and “does not plan on suing and is supportive of the House bill to repeal the provision.”
GOP Sens. Rick Scott (Fla.), Cynthia Lummis (Wyo.) and Ted Cruz (Texas), who all had their records subpoenaed by Smith, did not respond to request for comment.
Fury about the provision was on full display in a House Rules Committee reviewing the bill to end the government shutdown.
“There’s going to be a lot of people, if they look and understand this, are going to see it as self-serving, self-dealing kind of stuff,” Rep. Chip Roy (R-Texas), said at a Tuesday meeting of the panel.
“I don’t think that’s right,” Roy added.
Rep. Austin Scott (R-Ga.) lamented that House members were forced to vote the provision into law in order to end the nation’s longest-running shutdown.
“What they did is wrong. This should not be in this piece of legislation. And they can say it’s about good governance all they want to – when they made it retroactive, then all of a sudden it was no longer about good governance. There’s actually a list of people that know they will get paid as soon as this thing is signed, at least they’ve got the coupon where all they have to do is go follow the courthouse and get paid,” he said.
“If they think this is the right thing to do, then they should have a committee meeting and a straight up or down vote on it,” he added, speculating that such legislation “would never pass.”
Al Weaver contributed.
Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
For the latest news, weather, sports, and streaming video, head to The Hill.