A provision of the bill that ended the federal government shutdown left House lawmakers shocked and angry, but it looks like getting rid of it is going to be harder than they thought.

Republican senators put a provision in the package of bills that allowed them, but not House members, to sue the DOJ for accessing their phone data without notifying them, and to receive up to $500,000 in taxpayer money for each "instance" of access, retroactive to 2022, if they win.

The provision was included because during the shutdown, eight Republican senators found out that Special Counsel Jack Smith subpoenaed their phone records without their knowledge in 2022 and 2023, during the Arctic Frost investigation into the aftermath of the 2020 election and whether President Donald Trump and others in the GOP tried to circumvent the official election results.

Most of the senators have said they didn't plan to go after monetary damages, but the new law exposes the federal government to millions, maybe tens of millions, of potential damages per senator.

A vague understanding

Understandably, the House was not happy about this provision, but they had to end the shutdown, so they voted for the package with a vague understanding that the provision could be reversed later.

Now, though, the reversal has run into obstacles at the Senate--specifically, Sen. Majority Leader John Thune's resistance to axing the legislation.

The House voted overwhelmingly on Wednesday to strip the provision from the new law, but Thune controls what bills get a vote in the Senate, and he seems to be stalwart in preventing a vote on this one.

“That was a Senate-specific solution. The statute that was violated applied only to the Senate, which is why we addressed it the way that we did,” he told reporters at his weekly press conference. “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 is a violation of powers under the Constitution.”

Asking for trouble

This kind of specific rule is just asking for trouble. First of all, why exclude House members? Sure, there are 435 of them, so that's a lot more potential millions, but it just seems patently unfair.

There was at least one House member who also had his phone records accessed by Smith, so Thune's argument is not exactly correct.

Sure, the statute was Senate-specific, but the same thing happened to House members, so it should be addressed for both.

It's kind of interesting to see lawmakers acting like toddlers fighting over a preschool teacher's rule, but it can't be all that surprising to people who have paid attention to politics for a while.

At any rate, if the House wants to see this fixed, they will have to figure out a way around Thune.

Such sneaky maneuvers seem easier in the House, where you can almost always peel away one or two votes. The Senate is a whole different story, so we'll see what happens.