Unsanitized: Key Senate Democrats May Agree to McConnell’s Corporate Immunity Measure

Sens. Warner, Manchin, and Shaheen are conceding to McConnell’s expansive language, sources indicate. This is The COVID-19 Daily Report for December 7, 2020.

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First Response

Talks on a coronavirus relief package have heated up. In the first real movement since the passage of the CARES Act in March, Mitch McConnell participated in actual talks, a half-hour call with Nancy Pelosi, aimed at finding relief measures to stick into a government funding package (authority to fund the government runs out on Friday). Because it takes time to translate negotiations into legislation, Congress might pass a one-week continuing resolution on funding, giving time to negotiators to settle the deal.

But there are actual negotiations taking place, among the people who actually matter. Senators in both parties fanned out on the Sunday shows; one, Sen. Bill Cassidy (R-LA), expressed that Donald Trump would sign the $908 billion bipartisan “Gang of 8” package, which Nancy Pelosi, Chuck Schumer, and Joe Biden have already endorsed as a starting point for negotiations. Both sides said there was a lot of work to do but that failure was not an option.

The big reason why McConnell is coming to the table after all these months is easy to see: his control of the Senate could depend on passing relief. The latest poll in the Georgia runoffs, from a pollster that nailed President-elect Biden winning the state, has both Jon Ossoff and Raphael Warnock winning their races. Sens. Kelly Loeffler and David Perdue are running on delivering a relief package, and if they don’t, it’s open season on them with a few weeks to go. It’s in every Republican’s interest to keep their little gavels and nice offices, and moreover, red states are suffering the biggest revenue shortfalls, so the state and local aid in the package will help as well.

This desperation to save the Senate majority hasn’t tempered McConnell’s insistence on an incredibly broad liability protection for corporations that expose workers or customers to coronavirus. And according to sources close to the negotiations, at least three Senate Democrats—Mark Warner (D-VA), Joe Manchin (D-WV) and Jeanne Shaheen (D-NH)—are willing to go along with the McConnell language, which would not just fundamentally change the ability for individuals to sue over COVID infections, but could permanently safeguard corporations from the consequence of their own negligence.

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McConnell has been seeking this liability protection since April, warning darkly of an “avalanche” of lawsuits against poor, defenseless businesses for eight months. This wave of lawsuits simply has not happened. The COVID-19 complaint tracker from law firm Hunton Andrews Kurth shows that, out of 6,500 pieces of COVID-related litigation, only a couple hundred cases involve wrongful death or conditions of employment (like lack of PPE or exposure to COVID-19 at work). More to the point, there’s no sign of a wave of cases to come, because they would be extremely hard to pursue and prove, especially if you have one or two exposed individuals against a big corporation with a legal department. These cases are taken on a contingency basis, meaning that lawyers can only really afford to take them up when there’s a clear sign of negligence.

Yet McConnell continues to demand the same five-year liability protection he first released with Sen. John Cornyn (R-TX) in July. It would move all covered tort cases to federal court, where the far-right judges McConnell has spent four years confirming would get their hands on the cases. It changes the rules of civil procedure, including a heightened (and potentially impossible) burden of proof and damage caps. It bars federal agencies from enforcing or even investigating workplace standards. It limits liability for PPE that causes injury, as long as the FDA approved it. And it amends the WARN Act, which requires notice for mass layoffs, for the duration of the emergency.

Even Sen. Lindsey Graham (R-SC), chair of the Senate Judiciary Committee, said in a hearing on corporate liability, “We're not going to preempt all state laws here about everything… We need to make sure that bad actors are not given a break.” But that’s exactly what McConnell-Cornyn would do. And even if cases were already hard to prove, a liability release would likely make businesses more lax on coronavirus protections, freed from any accountability in the aftermath.

The concern among worker advocates is that the McConnell-Cornyn language becomes a “camel’s nose under the tent,” which then becomes impossible to dislodge and a permanent feature of workplace law. The bipartisan $908 billion proposal included a temporary liability release, to give states the time to fashion standards for negligence in COVID-related cases. But my sources say that McConnell has rejected this, and continues to demand his language as a red line.

A working group negotiating the relief package, led by Sen. Dick Durbin (D-IL), has attempted to offer other options to address COVID exposure litigation that fall short of corporate immunity. But Durbin has been undermined by Sens. Warner, Manchin, and Shaheen, who are willing to take the deal. The sources likened it to a hostage situation, with McConnell demanding his language without much of a policy rationale, and the three Democrats grudgingly acceding to it.

Sens. Manchin and Shaheen did not respond to a request for comment. Sen. Warner’s office referred to his appearance yesterday on CNN with Jake Tapper, who asked him about Sen. Bernie Sanders’ (I-VT) rejection of the bipartisan package, in part over the liability measure. “Senator Sanders, respectfully, is not involved in these negotiations,” Warner replied, arguing that the bipartisan bill just seeks “to give some level of a time-out to allow states, if they want, to put in place standards.” He called negotiations on liability protection “vigorous and ongoing.”

But unsaid here is whether Warner would be willing to go along with the much more permanent McConnell-Cornyn language, as my sources indicate. After discussing liability, Warner pivoted to saying that people desperately need relief, due to expiring unemployment measures and eviction moratoria, due to the lack of rental assistance, due to no funding for small business survival.

Does all of that offset what could morph into a fundamental change in worker and consumer ability to hold corporations accountable in court? The notorious case of Tyson Foods managers betting on which of their line workers would get COVID would fall under this liability protection. The situation with Amazon having at least 20,000 frontline employees test positive for COVID-19 would also fall under the immunity clause. (For the record, Amazon employees and the company’s PAC are one of Warner’s top contributors). Should those companies, even if negligence were found, be allowed to walk away?

Democrats have moved significantly off their initial topline numbers. They’ve deferred another $1,200 stimulus check. Durbin is battling to find some other way to address liability, which would still be movement from the initial demand of no special protections for corporations. But if his colleagues are willing to concede on liability protection, it’s hard for him to mount a defense. It will also be hard to follow on to this bill, if needed, with the more economic stimulus that will be needed when Biden becomes president, if the leverage on liability is taken off the table.

McConnell is the one who needs a bill to save his position as Majority Leader. Will Democrats give in on the thing he really wants out of the deal in the process?

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