WASHINGTON — Speaker Mike Johnson said the House will vote next week to repeal a provision slipped into the bill to end the shutdown that would allow senators to sue the government for potentially millions of dollars if their data is obtained without their notification.
Johnson said he was “shocked” and “angry” when he learned about the provision, which would uniquely benefit eight Republican senators, whose phone records — but not the contents of their calls or messages — were found to have been accessed as part of the investigation that led to former special counsel Jack Smith’s probe of the Jan. 6, 2021, attack on the U.S. Capitol.
When asked Wednesday if he knew about the provision, which was tucked into the bill to reopen the government, Johnson replied, “No, I found out about it last night.”
“I was surprised. I was shocked by it, and I was angry about it, to be honest,” he said.
The House passed the package to reopen the government later Wednesday, sending it to President Donald Trump to sign, and end the 43-day government shutdown.
But Johnson vowed on X that House Republicans would introduce stand-alone legislation to undo the provision, adding that he will put it on a fast track to get a vote in the House next week. That process means it will need the support of two-thirds of House members to pass and move on to the Senate.
Democrats and many House Republicans have been critical of the measure, which appears to apply only to senators and retroactively applies to data requests that were made on or after Jan. 1, 2022.
Rep. Greg Steube, R-Fla., one of two Republicans who voted against the legislation, vented his frustrations with the process that led to the provision being included, and the fact that House Republicans were being asked to vote for the bill regardless.
“That does nothing to change the fact that certain senators will get paid an additional $500k of taxpayer money. The Senate will never take up your ‘standalone’ bill,” he wrote on X in response to Johnson. “This is precisely why you shouldn’t let the Senate jam the House.”
Sen. Chuck Grassley, R-Iowa, the chair of the Senate Judiciary Committee, released an unclassified document in October showing that the FBI requested a review of phone data for eight Republican senators and one House member on Sept. 27, 2023.
It is unclear who initially pushed for the provision. But Senate Majority Leader John Thune, R-S.D., and Senate Minority Leader Chuck Schumer, D-N.Y., included it in a part of the package that will fund the legislative branch through September.
Sen. Martin Heinrich, D-N.M., the top Democrat on the subcommittee responsible for funding the legislative branch, said in a statement shared with NBC News: “I am furious that the Senate Minority and Majority Leaders chose to airdrop this provision into this bill at the eleventh hour — with zero consultation or negotiation with the subcommittee that actually oversees this work.”
“This is precisely what’s wrong with the Senate,” Heinrich said.
A GOP aide said the language was a member-driven provision but did not name which senators made the push, and they said that Thune did include the language at their request. Thune’s office declined to comment.
“Leader Thune inserted that in the bill to provide real teeth to the prohibition on the Department of Justice targeting senators,” said Sen. Ted Cruz, R-Texas.
A Democratic aide told NBC News that Schumer fought to make the provision prospective to protect his members from a corrupt and out-of-control DOJ under Attorney General Pam Bondi.
But a Schumer spokesperson said later Wednesday that Schumer now supports Johnson’s effort to strip the language from the bill and will push for that in the Senate.
The eight Republican senators whose phone “tolling records” were accessed were: Ron Johnson of Wisconsin; Lindsey Graham of South Carolina; Bill Hagerty of Tennessee; Josh Hawley of Missouri; Dan Sullivan of Alaska; Tommy Tuberville of Alabama; Cynthia Lummis of Wyoming; and Marsha Blackburn of Tennessee.
Rep. Mike Kelly of Pennsylvania also had his tolling records disclosed as part of the probe, but the provision in the government funding bill specifically focuses on senators.
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The “tolling data” would include who was called, when and the length of a call, but not what was said.
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The provision added to the government funding bill would require that senators be notified if their data is disclosed. If they aren’t — as the eight Republican senators were not — and they successfully sue, the court would be required to award “the greater of statutory damages of $500,000 or the amount of actual damages” for each violation.
It would not apply if the senator was the target of a criminal investigation or if a court ordered that the notification be delayed.
Graham, whose call data was accessed, said he favors the provision because it would “protect the Senate in the future, and it will also cover any Democrats in this Senate this term that may have something happened to them.”
Graham said he “definitely” plans to sue under the provision if it becomes law.
“I want to make it so painful no one ever does this again,” he added.
Johnson didn’t indicate who was responsible for the provision but said he trusts Thune. “He’s a great leader, but some members got together and hoisted that upon — put it into the bill at the last minute. And I wish they hadn’t,” Johnson said. “I think it was a really bad look, and we’re going to fix it in the House.”
The eight Democratic caucus members who voted for the legislation were Sens. Angus King, I-Maine, Jeanne Shaheen, D-N.H., Maggie Hassan, D-N.H., Catherine Cortez Masto, D-Nev., Jacky Rosen, D-Nev., Dick Durbin, D-Ill., John Fetterman, D-Pa., and Tim Kaine, D-Va.
NBC News asked each of their offices whether they knew the language was in the bill when they voted for it, and whether they agree with Johnson that it should be stripped out.
Durbin's office said he didn't know about the provision and supports repealing it.
A Rosen spokesperson said, “Given that this provision was added at the eleventh hour, Senator Rosen strongly supports efforts in the House to strip it out from the bill.”
A Cortez Masto spokesperson said the senator “had nothing to do with the decision to add this provision to the bill at the last minute, and she supports stripping it from the bill.”
A Shaheen spokesperson said: “Senator Shaheen was not involved in adding this language.”
A Hassan spokesperson said, “Senator Hassan strongly opposes this provision that was added to the legislation by Senate leadership at the last minute without her knowledge and supports action to reverse it.”
“Can absolutely say that Sen. King wasn’t aware” of that provision, said a spokesperson for King.
The others didn’t immediately return requests for comment.
