House push to overturn $500,000 cell phone litigation provision hits Thune blockade

The overwhelming House vote to repeal a provision allowing senators to sue if the Justice Department obtained their phone records without notice may ultimately fall flat as major obstacles in the Senate stand in the way of the change.

The House voted late Wednesday to scrap the “Arctic Frost” provision, which snuck its way into the final deal to end the shutdown last week and angered scores of lower chamber lawmakers on both sides of the aisle. The provision allows senators — but not House members — to sue the Justice Department and be awarded up to $500,000 damages for each “instance” of data collection. It is retroactive to 2022, so senators can sue over former special counsel Jack Smith’s probe into efforts to overturn the 2020 election.

Plenty of senators agree with their House counterparts, but Senate Majority Leader John Thune (R-S.D.) has passionately defended the measure and shown little appetite to hold a vote on undoing it.

“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.”

Sen. Kevin Cramer (R-N.D.) indicated he is sympathetic to the provision and doesn’t expect a fix to happen — but acknowledged it caught people off guard.

“The fact that John Thune and Chuck Schumer both understood it and agreed to it was rich and kind of takes away the biggest objections in my mind, but that doesn’t keep people from objecting,” Cramer said.

He added, “I didn’t find it that offensive. I do think people were upset. They felt a little sideswiped by it.”

The issue was a main topic during the Senate GOP’s weekly policy luncheon Wednesday, with lawmakers divided over how to handle it moving forward.

“It was clear that there’s no consensus on it,” Cramer said afterward. “People are mixed, understandably.”

Overall, nine Senate Republicans had their phone records obtained by Smith, most of whom have said they are not seeking financial damages.

But part of the lunch was taken up by Sen. Lindsey Graham (R-S.C.), who has become the most vocal of the nine in support of the provision and told reporters he not only plans to sue the Justice Department, but also Verizon for handing over his records to Smith.

Graham urged members not just to keep the provision in place, but to expand it to House members and other entities and groups.

“Open it up to any individual, any group that thinks they have a claim, and let them file a claim under the Federal Tort Claims Act,” Graham said.

The South Carolina Republican told reporters he would likely keep some of the money if he were successful in court.

Sen. Markwayne Mullin (R-Okla.) and Sen. James Lankford (R-Okla.), however, both said they were opposed to the measure based on the retroactive language.

“I’m not supportive of the look-back. I don’t think it’s a good idea,” said Lankford, a member of leadership, adding that he doesn’t blame House members for being miffed.

Mullin, a Thune ally, also told reporters he was unaware it was being attached to his funding bill for the Legislative Branch until after the shutdown vote was held. GOP leaders apologized to him and said it was supposed to be part of the continuing resolution language instead.

Thune was not the only leader to back the language, as Senate Minority Leader Chuck Schumer (D-N.Y.) also greenlit its inclusion. The New York Democrat told reporters Tuesday that he supported it in order to protect Senate Democrats from Attorney General Pam Bondi.

“We made it go prospective, not just retroactive,” Schumer said, adding he would back a full repeal of the item.

However, much of the decision rests on the shoulders of Thune — and despite the sentiment of rank-and-file members, he is showing little appetite to go along with it.

“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,” he told reporters Wednesday morning, adding that the members were effectively “spied on” through “illegal means.”

“That, to me, demands some accountability,” he added.

Updated at 6:51 a.m. EST

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