Mitch McConnell's Liability Shield Is Major Holdup For COVID-19 Deal

A bipartisan group of lawmakers is trying to negotiate a compromise involving Republican and Democratic priorities for another coronavirus relief bill, but Senate Majority Leader Mitch McConnell (R-Ky.) has pointedly refused to go along.

One of the biggest obstacles to passing a bill before the end of the year has been McConnell’s monthslong insistence on giving businesses and organizations broad protections from coronavirus-related lawsuits, which is opposed by Democrats. Senators discussed the contentious issue during a closed-door meeting on Monday evening but reached no deal.

McConnell on Tuesday suggested dropping his demand for a near-total ban on coronavirus-related lawsuits if Democrats also gave up their calls for extra funding for cash-strapped state and local governments, whose tax revenues have been badly hit amid the pandemic. Democrats say states and local governments need more aid in order to retain firefighters, police and teachers.

The idea would be to punt two divisive issues into the new year and a new administration.

“What I recommend is we set aside liability, and set aside state-and-local, and pass those things we agree on knowing full well we’ll be back at this after the first of the year,” McConnell said Tuesday, urging lawmakers to pass a bill with aid for schools, businesses and the unemployed ― areas where there is broad agreement.

But Democrats quickly shot down his suggestion that both sides ditch their top priorities, accusing him of trying to “sabotage” the bipartisan negotiations. Their demands for added state and local aid has support among several Senate Republicans, they added.

“State and local funding is bipartisan, unlike the extreme corporate liability proposal Leader McConnell made, which has no Democratic support,” Senate Minority Leader Chuck Schumer (D-N.Y.) noted at a press conference.

Sen. Jeanne Shaheen of New Hampshire, a Democratic member of the bipartisan group, also rejected McConnell’s approach, saying Congress needs to “provide help for cities and towns and states that have been on the front lines of this crisis.”

The $908 billion bipartisan framework that a group of eight senators proposed last week would extend federal unemployment insurance programs for four months, along with an extra $300 in weekly benefits. It would provide $288 billion for small businesses and $160 billion in assistance to state governments that have seen tax revenues drop due to lost economic activity. And it would include a temporary moratorium on personal injury lawsuits related to coronavirus exposure — a watered-down version of McConnell’s original proposal.

In a Senate floor speech on Monday, McConnell talked as though he were the one who had shown a willingness to compromise, and Democrats had not.

“Their strategy has been all or nothing,” he said.

Democrats had already come down from their demand for $436 billion in assistance to state and local governments. Most states expect less revenue in 2021 thanks to diminished economic activity resulting from social distancing regulations and consumers trying to avoid exposure to the coronavirus. Revenue projections are down by as much 20% or 30% in some states, according to a Ballotpedia analysis of National Conference of State Legislatures data.

McConnell said Tuesday that a lot of Senate Republicans “wonder if there’s a demonstrable need” for the state funding.

The liability proposal from McConnell and Sen. John Cornyn (R-Texas) would preempt state laws until 2024, requiring complainants to prove in federal court that a business or other institution essentially got them sick on purpose, while also providing an inventory of every place they visited and every person who came to their home in the two weeks before the onset of symptoms ― and that’s before a trial could even start.

Companies would be able to sue people just for making settlement demands, and U.S. attorneys could then prosecute them.

A source familiar with the negotiations said that while Republicans in the working group, such as Sens. Mitt Romney (Utah) and Bill Cassidy (La.), have been willing to compromise, McConnell has not. “He’s not budging at all,” the source said.

When McConnell introduced the liability shield concept earlier this year, he said it was necessary to prevent “an epidemic of lawsuits” against schools, health care providers and businesses that threatened the economy.

But of the more than 6,500 coronavirus-related lawsuits tracked by the law firm Hunton Andrews Kurth, fewer than 400 are the kind of personal injury complaint McConnell had in mind. Many more are from businesses suing each other or suing the government over coronavirus restrictions.

“Far from the pandemic of lawsuits there’s barely been a trickle, and yet the Republican leader continues to prevent Americans from getting the aid they so desperately need and deserve until he gets this piece of partisan ideological legislation,” Schumer said in a floor speech on Tuesday.

Remington Gregg, counsel for civil justice and consumer rights at the consumer advocacy group Public Citizen, said the Republican liability proposal would even squelch suits like the one brought by poultry plant workers against the meatpacker Tyson Foods. A wrongful death suit alleges that supervisors made employees work while sick and bet money on how many would get COVID-19.

“The procedural hurdles would make it nearly impossible to bring a lawsuit and the substantive changes to the law would create an almost insurmountable difficulties in proving their case,” Gregg said.

Romney on Monday floated a compromise ― limiting the federal liability shield for companies and other organizations to the year 2020, while giving states time to pass legislation of their own to address the issue in 2021. It’s unclear whether McConnell would go for it, however.

“Ultimately it’s going to have to satisfy Sen. McConnell because it’s been one of his leading priorities since the beginning of this,” Senate Majority Whip John Thune (R-S.D.) told reporters on Monday.