Michael Brochstein/Sipa USA via AP Images
Senate Majority Leader Mitch McConnell speaking at a press conference on Tuesday
As Congress nears return, the contours of the “coronavirus 4” package—you know, the one with all the stuff Democrats want—are coming more clearly into view. The Democratic proposal looks like a mixed bag, providing big funding for desperately needy states and municipalities, but also a bailout for K Street lobbyists.
On the other side of the aisle, Mitch McConnell, who initially indicated there would be no further stimulus whatsoever, has trained his singular focus for the newest package on blanket legal immunity for corporations. The Senate majority leader, doing the express bidding of the U.S. Chamber of Commerce, claims that the best way to reopen the economy and return to normal is to grant corporations total legal impunity in coronavirus cases, even for those that recklessly expose workers and customers to unsafe, virus-spreading conditions.
It will come as a surprise to almost no one that this is not a priority shared by the American people. In fact, new polling from Hart Research, commissioned by the American Association of Justice, finds that McConnell’s proposal is underwater among nearly every demographic. Sixty-four percent of voters oppose the idea of guaranteed immunity. That opposition cuts across party lines: 72 percent of Democratic voters are against it, as well as 64 percent of independents and 56 percent of Republicans. Undecided voters oppose it at a 73 percent clip; and 63 percent of people who lost jobs or wages had an unfavorable view of the McConnell plan.
There is almost no institution less vulnerable than the corporation, which McConnell has nonetheless placed at the top of the list of his bailout priorities.
Not only is the proposal unpopular, it’s also extremely unnecessary. Already there is an armada of pro-business provisions in place that has obliterated corporate legal vulnerability to the point of near-nonexistence. The wide proliferation of forced arbitration means the vast majority of corporations already enjoy almost total legal immunity. In fact, in employment contracts, car leases, electronics purchases, health insurance, and basically all contracts for credit, sales, and services, Americans have functionally waived their rights—more precisely, had their rights waived by corporations and pro-corporate courts—to hold companies accountable for wrongdoing under local, state, and federal laws. These waivers allow companies to choose their own arbitrator to preside over those disputes.
In this as in other matters, the country’s highest judicial body has a record of extreme corporate fealty. In fact, the decades-old Republican majority on the Supreme Court sports an almost absolute pro-employer and anti-worker and -consumer voting record; even its venerated liberal justices frequently come down on the side of the Chamber of Commerce. Thanks to sustained electoral and lobbying efforts over decades, business now enjoys a legal climate in which it is almost entirely beyond legal reproach, much less liability.
In fact, the very concept of the limited-liability company was created with the express intent of minimizing legal liability. The structure was created to provide a liability shield for company owners and executives, protecting their personal assets from legal action. Bankruptcy law is structured in much the same way. Shielding liability is the first order of existence of a corporation.
If anything, McConnell’s push for blanket corporate immunity represents the highest stage yet of corporate hegemony, a level of corporate dominance we’ve been inching toward for years but needed a crisis to finally arrive at. There is almost no institution less vulnerable than the corporation, which McConnell has nonetheless placed at the top of the list of his bailout priorities. “We were shocked because the public wants more than anything to feel safe, and if no one is accountable no one is safe,” said Linda Lipsen, CEO of the American Association for Justice. “But we’re not surprised because the majority leader has been trying to immunize corporate conduct for 34 years.”
We actually already have a sense of what supercharged corporate immunity looks like in the coronavirus age. Earlier this week, Utah Gov. Gary Herbert signed legislation that offers the state’s businesses immunity from litigation over coronavirus exposure (except in the case of willful misconduct). Claiming that the real problem was that businesses were nervous about being plagued by “frivolous” lawsuits from patrons and employees, Utah’s Republican leadership decided to roll out its sweeping corporate-immunity plan. The state’s new law one-ups those of the at least 15 other states that have enacted laws or governor’s orders that offered nursing homes, hospitals, and long-term care facilities some protection from lawsuits related to the pandemic, according to ABC News.
Just one day after Utah gave its businesses a Get Out of Jail (and Even Court) Free card, reports emerged of two separate Utah businesses that had been telling staff to ignore quarantine guidelines. At one business, that has resulted in 48 percent of employees contracting coronavirus; together, the firms have been responsible for 68 additional cases.
It’s yet to be seen whether McConnell’s latest wish list will make it into the final congressional package, but McConnell usually gets what he wants in these negotiations. And while Republicans prioritized financial assistance to large corporations and the least vulnerable in the first bailout package, it looks as though enhanced legal protection for those very same folks is right around the corner.
