The Senate is debating whether to repeal, expand or keep a new law that allows senators to sue the government for damages if their phone records are accessed for a federal investigation without their knowledge.
The provision, which was added to the spending deal to reopen the government, was prompted by the recent revelation that Republican senators’ phone records were secretly subpoenaed in the Biden-era Arctic Frost investigation.
The new law would allow the impacted senators to recover up to $1 million in damages from the government.
Most lawmakers were unaware the provision was tucked into the spending bill and many are upset about it. The House passed a bill to repeal it on Wednesday night by a unanimous 426-0 vote.
“It’s probably the most self-centered, self-serving piece of language that I have ever seen in any piece of legislation,” said Rep. Austin Scott, Georgia Republican and lead sponsor of the bill.
Senate Republicans debated during their conference lunch on Wednesday how they should respond, but did not come to any conclusions.
“We heard a lot of opinions,” said Sen. Kevin Cramer, North Dakota Republican. “There are some people that would take any version from repeal to fix.”
The “fix” under discussion is expanding the ability to sue to more than just senators.
“I think the better remedy is just open up a process so you can make a claim if you think you were harmed,” said Sen. Lindsey Graham, South Carolina Republican, noting former House Speaker Kevin McCarthy and two other House Republicans and dozens of conservative groups were also targeted in the Arctic Frost investigation.
Mr. Graham is one of the senators whose phone records were disclosed, and said he plans to pursue legal action regardless of whether the provision remains law.
“This statute has nothing to do with my lawsuit; it’s a remedy for the abuse of the subpoena process,” he said. “I’m going to sue Verizon, and I’m going to sue the Department of Justice for violating my rights as a senator and as an individual … a federal tort claim.”
Senate Majority Leader John Thune, South Dakota Republican, said that his conference had “a good conversation” over lunch and he expects they will have “a more wholesome” discussion after the House passes the bill.
But he defended the law as written, saying it was intentionally designed to apply only to senators.
“The statute that was violated applied only to the Senate, which is why we addressed it the way that we did it,” Mr. Thune said. “We strengthened that provision when it comes to allowing a federal government agency, the Justice Department in this case, to collect information, private information, on individual senators. We think that’s a violation of separation of powers in the Constitution.”
Mr. Thune was referring to an existing law that says any communications provider serving the Senate office “shall not be barred, through operation of any court order or any statutory provision, from notifying the Senate office of any legal process seeking disclosure of Senate data.”
Republicans say special counsel Jack Smith violated that law when he secretly subpoenaed the senators’ January 2021 phone records as he investigated Mr. Trump’s challenges to the 2020 election results.
District Court Judge James Boasberg signed off on the subpoenas and ordered the phone companies not to reveal the disclosure of the records to the affected lawmakers.
The new law enacted in the spending deal clarifies that telecom providers are required to notify Senate offices if they receive a subpoena or another legal request for Senate data. If the notification requirement is violated in relation to federal investigations, senators can sue the government for up to $500,000 in damages for each violation.
The language would apply retroactively, allowing the senators whose phone records were disclosed in the Arctic Frost investigation to seek a government payout.
Mr. Smith’s subpoena and Mr. Boasberg’s nondisclosure order would likely count as separate violations, entitling each senator to up to $1 million in damages.
The final language in the spending deal was negotiated between Mr. Thune and Senate Minority Leader Charles E. Schumer, New York Democrat.
“We wanted to make sure that at least Democratic senators were protected from [Attorney General Pam] Bondi and others who might go after them, so we made it go prospective, not just retroactive,” Mr. Schumer said. “But I’d be for repealing all the provisions, all of it. And I hope that happens.”
Senate Judiciary Committee Republicans revealed last month that eight Republican senators’ phone records were secretly disclosed in the Arctic Frost investigation, along with those of Pennsylvania GOP Rep. Mike Kelly. They’ve since announced the total is up to 13 members of Congress whose records were subpoenaed.
Republican Sens. Marsha Blackburn of Tennessee, Bill Hagerty of Tennessee, Josh Hawley of Missouri, Ron Johnson of Wisconsin and Dan Sullivan of Alaska were among the targets but said they do not plan to seek financial compensation from the government, even if they decide to sue for a declaratory judgment.
Mr. Graham said he would pursue damages because that is what it will take to prevent similar abuses from happening in the future.
“The idea I would settle this claim for $500,000 is silly,” he said. “I am not. I’m going to make it hurt as much as I possibly can so nobody will do this again.”
The senator said his motives are not selfish and he wants to expand the law to provide a remedy for any individual or any organization that was unjustly targeted in the Arctic Frost investigation.
“A right without a remedy is meaningless,” he said. “So this will be done in a fashion to address wrongs of today and hopefully prevent abuse of tomorrow.”
Other senators would prefer to just join the House in repealing the provision.
“Suing the government is one thing, but taking taxpayer money, I just don’t get that. I don’t support it,” Mr. Hawley said.
Mr. Thune signaled that a full repeal is unlikely.
“We’ll find out what our colleagues here in the Senate want to do,” he said. “One thing I can tell you is there is a high level of interest in addressing the weaponization of the federal government, in this case the Biden Justice Department against Article One members of our government here in the United States Senate.”
House members may not let Senate inaction stand.
Rep. John Rose, Tennessee Republican, said he’s filed a House resolution authorizing Speaker Mike Johnson to challenge the provision in court if the Senate does not repeal it.
“The Senate’s provision amounts to a pay increase funded by taxpayers, which is unconstitutional,” he said. “It defies the 27th Amendment, which states that no law can change a lawmaker’s compensation until a new Congress is sworn in.”
