The House voted unanimously Wednesday night to repeal a provision that Congress passed last week that allows senators to sue the federal government for seizing their phone records — but the repeal effort faces an uncertain future in the Senate.
The provision in the law that ended the government shutdown allows senators to sue the Justice Department for seizing or issuing subpoenas for their data without notifying them, as long as they are not the targets of a criminal investigation. The law specifies that senators can receive $500,000 in potential damages for each violation, in addition to legal fees. It does not apply to House members.
The language was drafted in response to special counsel Jack Smith’s investigation into President Donald Trump’s involvement in the Jan. 6, 2021, attack on the Capitol. The FBI obtained phone data from at least eight senators and one House member from the days before and after the attack, according to an FBI documentreleased by Senate Republicans last month.
The provision took House members — and many senators — by surprise last week and prompted intense backlash from lawmakers of both parties, who criticized it as “self-dealing.” It briefly seemed to jeopardize the effort to reopen the government, as some House Republicans threatened to withhold their vote until it could be changed. House Speaker Mike Johnson (R-Louisiana) said he was angry about the provision and pledged to fast-track a vote to repeal it.
Rep. Austin Scott (R-Georgia) sponsored the legislation to repeal the provision. He argued on the House floor Wednesday that Congress was given a choice whether to reopen the government “and I’m glad we ended the chaos.”
“But there’s a provision in this bill that in my time in office, I believe is probably the most self-centered, self-serving piece of language I have ever seen in any piece of legislation,” he said.
Democrats also derided the measure as a scheme for senators to make money off American taxpayers and slammed their Republican colleagues for supporting the bill to fund the government last week despite the provision. (Six House Democrats also voted for the bill.)
“Under no circumstances should the power entrusted to us as members of Congress be used to line our own pockets,” said Rep. Joe Morelle (New York), the top Democrat on the House Administration Committee. “Anyone who voted for this appalling provision, including all but two House Republicans just last week, should be ashamed of themselves.”
Despite the overwhelming support for reversing the provision in the House, there’s little indication that the Senate will take it up soon — at least without rewriting it.
The measure was a last-minute addition to the bill to end the shutdown negotiated by Senate Majority Leader John Thune (R-South Dakota) and Senate Minority Leader Charles E. Schumer (D-New York), each of whom said later said they were seeking to protect senators from abuse of federal investigative powers by presidents of the other party.
Thune has not said whether the Senate will take up the bill if it passes the House. But he has defended the provision, even as he acknowledged some senators were frustrated they weren’t told about it earlier.
“I take that as a legitimate criticism in terms of the process,” Thune told reporters Wednesday. “But I think on the substance, I believe that you need to have some sort of accountability and consequence for that kind of weaponization against a coequal, independent branch of the government.”
Schumer said Thune had pushed for the measure and that he would support repealing it. But he added that he persuaded Thune to write the provision in a way that allowed senators to sue the Justice Department going forward as well as retroactively — so it didn’t only apply to the Jan. 6 investigation.
“We wanted to make sure that at least Democratic senators were protected from Bondi and others who might go after them,” Schumer told reporters Tuesday, referring to Attorney General Pam Bondi.
Senate Republicans discussed how to handle the bill during a closed-door lunch Wednesday but emerged without a consensus.
Most of the senators whose phone records were collected by the FBI in the Jan. 6 investigation have said they don’t plan to sue under the provision.
Sen. Rick Scott (R-Florida), who has said his records were collected as a part of the Smith investigation, said he would support the House repeal bill.
“I give away my salary, so it’s not like I need to make any money off government,” said Scott, a former health care executive who is one of the richest members of the Senate.
Sen. Josh Hawley (R-Missouri) said in a statement that the Senate provision is “a bad idea.”
“There needs to be accountability for the Biden [Justice Department]’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecomm companies, and prosecution where warranted,” he said.
But Sen. Lindsey Graham (R-South Carolina), whose records were also collected during the investigation into the attack on the Capitol, has emerged as the bill’s most vocal defender.
He said he favors revising the provision to allow House members and others to sue in addition to senators.
“I think there’s a general belief that we probably need to rewrite it and expand it to deal with other groups so that other people can have their day in court,” Graham said.
He said he plans to sue the Justice Department as well as Verizon, which he said turned over his phone records improperly.
“This is not about the money as much as it is about making sure it doesn’t happen again,” Graham told reporters Wednesday.
Kadia Goba contributed to this report.
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