A Senate provision in a major spending package to end the partial government shutdown has rattled House Republicans and given new political ammunition to Democrats seeking to defeat the measure. A provision in the fiscal 2026 Legislative Branch spending bill, which is part of the package, would allow senators to sue for at least $500,000 each when federal investigators search their phone records in a judicially sanctioned probe without notifying them. It would also apply retroactively, meaning at least 10 senators whose records were searched by former special counsel John L. "Jack" Smith in his probe of the Jan. 6, 2021, attack on the Capitol would automatically be entitled to big payouts. The eleventh-hour discovery of the provision, which apparently caught House leaders by surprise, became a new flashpoint on the eve of a critical House vote scheduled for Wednesday that could effectively end the longest partial shutdown in history. It didn't appear the Senate language would be enough to derail the government-reopening package. But several Republicans who spoke at the House Rules Committee hearing on the bill late Tuesday made clear that they want to at least see separate legislation to fix the provision after the shutdown ends. 'A hard night' Rep. Austin Scott, R-Ga., said he "had a hard night" when he first heard of the language's existence Monday. "And I've been struggling with what the right vote is, because of what the Senate did," he said. Scott seized on the retroactive application of the provision, as well as the fact that not only would each senator receive a $500,000 payment for each violation, but that they'd receive payments for each account or device used. That could mean up to six separate violations for $500,000 each, given lawmakers' multiple phones and email addresses for their campaigns, business and personal use, Scott said. "They’re saying the executive branch shouldn’t be checking up on the legislative branch. Well, there’s some truth to that," Scott said. "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." As it stands, there are at least 10 GOP senators whose data is said to have been collected as part of Smith's investigation, code named "Arctic Frost," that began in the spring of 2022: Marsha Blackburn and Bill Hagerty of Tennessee; Josh Hawley of Missouri; Lindsey Graham of South Carolina; Cynthia Lummis of Wyoming; Dan Sullivan of Alaska; Tommy Tuberville of Alabama; Ron Johnson of Wisconsin; Ted Cruz of Texas and Rick Scott of Florida. Rep. Mike Kelly, R-Pa., was also named in documents, but as a House member he wouldn't be eligible for payouts. "I do not think that this provision should have been inserted, it certainly shouldn’t have been inserted at the eleventh hour," Rep. Chip Roy, R-Texas, said during the Rules meeting. "I think there’s going to be a lot of people, if they look and understand this, they’re going to see this as self-serving, self-dealing kind of stuff, and I don’t think that’s right," added Roy, who is running for Texas attorney general. "It is beside my comprehension that this got put in the bill. And it’s why people have such a low opinion of this town." Democrats used up a good chunk of their time at the meeting, and at an earlier news conference, to call attention to the provision and blast GOP acceptance of it. "I think it is outrageous, outrageous, for these Republican senators to effectively guarantee themselves million-dollar paydays," said Rep. Joe Neguse, D-Colo. He quizzed House Appropriations Chairman Tom Cole, R-Okla., who testified in support of the bill at Rules, about the provision. Cole expressed support for the general idea of the provision, but said he didn't know anything about its inclusion in the spending bill. "I am very concerned that anybody, whether they’re in the House or the Senate, is singled out and not notified that their records are being subpoenaed. That concerns me a great deal," Cole said. "Now, did I know about this provision in the bill? No. Do I think it needs to be in a funding bill? Not particularly," Cole continued. "But do I think getting the government opened is important? Yes I do." House Minority Leader Hakeem Jeffries, D-N.Y., who is pushing to defeat the bill in an effort to extend expiring enhanced health insurance subsidies, was quick to seize on the provision at a news conference Tuesday evening. "We're going to tattoo that provision … on the foreheads of every single House Republican who dares vote for this bill," he said. Rep. Suhas Subramanyam, D-Va., spoke in favor of an amendment at Rules to strip the Senate provision. "This is our only chance to right this wrong and this is corruption," he told the committee. "It is theft in broad daylight. And anyone, anyone, voting against this amendment … is complicit in that corruption." But there was no sign that House Republicans were prepared to derail the bill, even as they expressed their concern about the Senate provision. "I personally agree that it should be removed," Scott said. "The problem is, if we remove it … it has to go back to the Senate, and then you're right back to where you were 40 days ago," he said, referring to the start of the partial shutdown that began Oct. 1. Legislative hot potato Senate Appropriations Chair Susan Collins, R-Maine, had inserted the provision at the behest of Senate Majority Leader John Thune, R-S.D., according to House Appropriations ranking Democrat Rosa DeLauro of Connecticut. Scott said his understanding was that Senate Minority Leader Charles E. Schumer, D-N.Y., also signed off on the language, and that Senate leaders hadn't shared the information with House GOP leaders. Republican senators were furious to learn that Smith had subpoenaed their phone records in 2023 without their knowledge. Smith, through attorneys, has defended the search as a lawful attempt to probe the actions of President Donald Trump and associates that led up to the Jan. 6 attack. And some Democrats, for their part, fear what Trump's Justice Department might do to them without similar legal protections. While Democrats agreed that an attempt to ensure notification may be appropriate, they said Senate leaders went too far by arranging for retroactive payments that would apply only to senators as opposed to House members or anyone else caught up in a probe. "Regardless of anyone’s opinion on what happened on Jan. 6, it should be unacceptable to every member of the House that the Senate can secretly add language to a bill without even notifying us," DeLauro told the Rules Committee. Roy, a prominent voice in the ultraconservative Freedom Caucus, denounced the Senate provision but left his options open as to what he wanted to do about it. "We need to fund the government and we need to get this passed, and I'm trying to figure out what we can do to force the Senate's hand," Roy said. "That provision needs to get fixed and we need to find a way as a body to get it fixed as soon as possible, and I'm continuing [to] explore the options." Rep. Morgan Griffith, R-Va., piled on, saying he was "very concerned" about the "highly suspect" provision. Griffith said amending the spending package to fix the provision would be a step too far. "I will not vote for any amendments because the shutdown needs to end. It’s been going on too long. Too many of my people are hurting," Griffith said. "We can’t take any more suffering. I need to vote to open the government back up." Paul M. Krawzak contributed to this report.
