Republicans call it a liability shield. You could also call it a stimulus killer.
In the fourth or fifth or maybe it’s the sixth month of negotiations over a new coronavirus stimulus bill, talks continue to stall over Republican demands for a liability exemption for businesses. Senate Majority Leader Mitch McConnell insists businesses need extra federal protection in case workers or customers contract coronavirus at their establishments. He wants this protection against lawsuits to last for five years, which could be well past the time vaccines have helped eradicate the disease.
McConnell casts himself as the Senate’s chief defender of business interests, but his intractability on a liability shield suggests other motivations. For starters, many legal experts say businesses don’t really need extra protection, as long as they take reasonable precautions to protect employees and customers. “In most situations, when you have community transmission going on, it would be hard to establish that somebody got sick at a particular location,” says professor Heidi Li Feldman of Georgetown University Law Center. “It’s not an esoteric standard. You have to act reasonably and with due regard for the safety of others.”
Some businesses may not be looking out for everybody’s safety. Bars and restaurants in some areas have defied public health orders limiting capacity. Meat-packing plants have battled public health agencies to stay open. In May, carmaker Tesla violated a county shutdown order by reopening its Fremont, Calif., factory, risking the arrest of workers or managers.
Sabotaging state and local aid
Democrats are dead-set against McConnell’s liability shield, which they say would essentially give businesses permission to act recklessly, without the risk of getting sued or any other consequences. Is this who McConnell is really trying to protect? Businesses willing to put workers and customers at risk? Maybe, but there’s probably more to it.
McConnell needs a legislative priority he can use as a counterweight to Democratic demands for federal aid to states and cities. “The Republican DNA is to not help with state and local aid,” says Ben Koltun, senior research analyst at Beacon Policy Advisers. “For Republicans, state and local aid is synonymous with bailing out Democratic states. It’s his way of sabotaging state and local aid.”
On Dec. 8, McConnell said Congress should table both issues, and pass a new stimulus bill with neither a liability shield nor state and local aid. There could still be a fresh round of assistance for struggling businesses, unemployed workers and embattled health care systems, plus money to help with distribution of forthcoming vaccines. But Democrats rejected that, and a few Republican legislators have begun to argue that red states need stimulus help as much as blue states.
As circular and never-ending as these stimulus talks seem, there has been progress toward a possible deal. McConnell and his Republican colleagues in the House of Representatives have signaled they might now support around $900 billion in new spending, a considerable bid up from their prior ceiling of $500 billion. There’s also a new “bipartisan” agreement on a $908 billion by centrist members of both parties, though Republican and Democratic leadership haven’t signed on to that yet.
While it’s still not evident what a final compromise on liability and state and local aid might look like, there’s growing optimism that Congress will pass something by Dec. 18, when they’re due to leave town for the rest of the year. The liability shield could cover a much shorter period, such as six months instead of five years. It could also be accompanied by a new set of safety standards businesses must meet for a liability shield to apply. And it’s possible Congress passes a bill without a liability shield, as long as there’s no state and local aid either, as McConnell suggested recently.
Incoming President Joe Biden has said he’ll press for additional stimulus after he takes office in January, no matter what Congress does in last few weeks of 2020. And both parties are hoping they’ll prevail in the two Georgia runoff races on Jan. 5, which will determine which party controls the Senate. So even if there’s a deal in 2020, there will still be plenty to fight over in 2021.
Rick Newman is the author of four books, including “Rebounders: How Winners Pivot from Setback to Success.” Follow him on Twitter: @rickjnewman. Confidential tip line: firstname.lastname@example.org. Click here to get Rick’s stories by email.