Hidden Payoff: Senate Provision Would Let Senators Collect Up to $1M for Undisclosed Phone Subpoenas

Once hailed as “the world’s most deliberative body,” the U.S. Senate has been criticized for a last‑minute insertion into a 394‑page spending bill that would allow senators to recover up to $1 million if they were not notified that their phone records had been subpoenaed. Critics say the provision looks like a tailored benefit for officeholders and raises serious legal and ethical questions.

What the provision does

The language, added hours before a final vote and without consultation with Democrats, permits a senator to sue the government for damages if telephone metadata was sought or obtained without timely notification. It authorizes up to $500,000 for allegedly illegally obtained records and another $500,000 for a failure to notify, with notification allowed to be delayed only when the individual is the subject of a criminal investigation.

Background: subpoenas and nondisclosure orders

Special counsel Jack Smith, while investigating efforts to overturn the 2020 presidential election, obtained subpoenas in May 2023 signed by U.S. District Judge James Boasberg for telephone records of several members of Congress. Boasberg granted a nondisclosure order — finding reasonable grounds to fear destruction of evidence, witness intimidation, and other danger to the investigation — so carriers were not to alert targets that metadata (call numbers and durations, not content) had been provided to the Department of Justice.

Who was named

After the nondisclosure order expired and whistleblowers disclosed details, Sen. Chuck Grassley released a list of lawmakers whose metadata had been turned over: Sens. Lindsey Graham (R‑S.C.), Bill Hagerty (R‑Tenn.), Josh Hawley (R‑Mo.), Dan Sullivan (R‑Alaska), Tommy Tuberville (R‑Ala.), Ron Johnson (R‑Wis.), Cynthia Lummis (R‑Wyo.), Marsha Blackburn (R‑Tenn.), and Rep. Mike Kelly (R‑Pa.). Ted Cruz and Rick Scott were also identified as targets, though their records apparently were not provided.

Why critics object

Opponents argue the provision creates the appearance of self‑enrichment, conflicts with Senate Ethics Committee Rule 37 (which bars members from aiding in the passage of legislation that directly benefits them), and waives sovereign immunity retroactively to 2022. Sovereign immunity generally prevents state and federal governments from being sued without consent; carving out a retroactive waiver for a narrow group of legislators risks unfairness and invites challenges.

Representative Jim Jordan summed up one objection: “Frankly, I would just say that we should pass laws for Americans, not for any special category.”

Procedural fallout and next steps

Speaker Mike Johnson called the insertion “not a smart thing” for Majority Leader John Thune to do, but the House left the language in to avoid returning the bill to the Senate and prolonging the government shutdown. On Nov. 19, the House voted unanimously to repeal the measure; the repeal now returns to the Senate, where its fate is uncertain. If the bill reaches the White House, the president will decide whether to sign or veto it.

The episode has renewed broader debates about transparency in investigations, the proper scope of nondisclosure orders, and whether members of Congress should be subject to the same remedies and constraints as other citizens.

By Glenn C. Altschuler