Republican Senators Want to Repeal the Phone Data Provision They Added to the Funding Bill

Some Senate Republicans are furious at congressional leadership over a provision in the recently passed government funding bill that allows senators to sue the federal government if their digital data is subpoenaed, acquired or accessed without notifying them.

Several already seemed ready to repeal it, or said they expected it would happen.

“I do not support that at all,” Sen. Markwayne Mullin said Tuesday, adding that he did not know the language was attached to the funding bill until after the vote. Mullin said Senate Majority Leader John Thune called him and “apologized” for the inclusion.

Sen. John Kennedy, a member of the Appropriations Committee, told reporters he repeatedly asked leadership about any late additions to the funding bill, and this provision was never brought up.

“Don’t like the stuff that’s dropped at the last minute, that we’re not told about,” Kennedy said.

“Sometimes people around here want to treat us like we’re children, but I’ve got to vote just like everybody else, and our leadership should have told us about this,” Kennedy said, adding that he would vote to repeal the provision.

Thune’s office did not directly comment on Republican senators’ discontent with the provision.

The deal to reopen the government passed by Congress last week included a provision to allow senators — not members of the House — to sue the federal government for up to $500,000 if their digital data is seized without previous notification, and they can do so retroactively through 2022. They can sue for each “instance” of the government attempting to access their data, and sue again if agencies obtain the data.

The provision was prompted by a report from the Senate Judiciary Committee’s chair, Chuck Grassley, which said that a former special counsel for the Department of Justice, Jack Smith, subpoenaed the phone records of several Senate Republicans without prior notification in 2023 as part of an investigation related to the Jan. 6, 2021, Capitol insurrection.

The provision, which was tucked into the funding bill by the Senate, was swiftly met with backlash in the House. Speaker Mike Johnson was one of its critics, at one point saying he was “very angry” at the inclusion and told Thune as much. Some House Republicans have knocked the provision for its potential to disproportionately benefit the lawmakers included in the report.

The lawmakers in the report were Sens. Josh Hawley, Bill Hagerty, Marsha Blackburn, Lindsey Graham, Cynthia Lummis, Dan Sullivan, Tommy Tuberville and Ron Johnson.

Only Graham has said he plans to use the carveout to sue, though he later moderated his tone, arguing that the ability to sue should be expanded instead of repealed.

“Organizations, congressmen, staffers, and individuals in the private sector who may have been harmed will be provided the same rights,” Graham wrote on X last week. “Stay tuned.”

Other senators have tried to keep the provision at arm’s length. Hawley, Hagerty, Blackburn, Sullivan and Johnson have told reporters they do not plan to sue the government using the provision.

Tuberville told NOTUS that he “is not looking to sue the federal government,” adding that he would vote to repeal the provision.

Lummis said last week that she has not decided whether she would sue. Her office did not respond to a request for comment, and she told NOTUS she was not talking to reporters on Wednesday.

The discontent among lawmakers has sparked a bipartisan, bicameral rush to repeal the payout provision. Democratic Sen. Martin Heinrich and Republican Rep. Austin Scott have introduced legislation in both chambers to repeal the provision.

The House on Wednesday will vote on Scott’s bill to repeal the provision, Johnson’s office confirmed to NOTUS.

Thune on Tuesday night declined to say whether he plans to pick up the repeal legislation in the Senate if it passes the House, but said that “the House is gonna do what the House is gonna do.”

House Republicans slammed the provision as self-serving.

“We should have laws that apply to Americans, not to some special group,” Rep. Jim Jordan, the chair of the House Judiciary Committee, told NOTUS last week.

He added that he is planning to introduce legislation to broadly expand the ability to sue the government over data collection.

“It’s absolutely ridiculous. We are going to do something about it,” the House Republican whip, Tom Emmer, also told NOTUS last week.

Senators who are more supportive of the measure said they were open to changing the provision to something with wider support.

“I like the idea that there was a recourse to stop the administration from pulling that kind of a stunt again,” Sen. Mike Rounds said. “I’m open to a different language on it, but we most certainly wanted to send a message to the administration, ‘This is not going to happen.’”

“Most of us would be open for a reconsideration of [what] it says,” Rounds added. “If there’s a way to get it through on the House side with everybody feeling good about it, I’m open to the discussion.”

Multiple Republicans cast blame on Senate Minority Leader Chuck Schumer for agreeing to include the provision on the bill.

Schumer acknowledged he had a role in crafting the technicalities of the provision.

“Thune wanted the provision, and 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,” Schumer said.

But, Schumer added, he’d be for repealing “all of it,” adding, “I hope that happens.”