The latest Covid-19 relief package is held up in the Republican-controlled Senate for a number of reasons. Senate majority leader Mitch McConnell has been refusing to put the HEROES Act, first passed in the House of Representatives in May and recently updated, on the Senate floor for an up-or-down vote. That act would almost surely garner support from the three or four Republicans senators needed to pass the legislation, if McConnell would allow simple democracy to function.
Not only is McConnell refusing to put the House bill on the floor; he’s actively discouraging the White House from negotiating with Democrats. House Speaker Nancy Pelosi and Treasury Secretary Steve Mnuchin are in talks, allegedly trying to hash something out, while McConnell is trying to tell Trump through the press not to make a deal.
Arguably, McConnell’s antidemocratic stonewalling is “normal” Washington gridlock from Republicans, but Covid-19 relief has also been stymied by the policy incoherence of the Trump administration. Up until now, the president has spent more time negotiating against himself on Twitter than he has spent working with lawmakers to achieve a compromise. In addition to trying to work around an unreliable president, lawmakers are staring down the barrel of a national election, and Republican lawmakers are busy trying to rush through a Supreme Court confirmation.
But beyond the “Democrats want government to work, Republicans want to win at government” concerns that generally destroy our politics, the Covid-19 relief debate actually includes real-life policy differences between the parties. Shocking, I know. It’s been so long since Democrats and Republicans disagreed about something other than the basic rule of law or the foundations of democratic self-government that an actual policy fight can seem quaint, or even unimportant given the larger issues surrounding a pandemic stimulus package.
The first policy dispute is around how large the relief package should be. The Republican bill put on the floor by McConnell this week contains no actual payments to people who have been devastated financially by the pandemic. Republicans have offered no checks to people struggling to make rent or in need of groceries. In fact, their stimulus plan contains no direct stimulus for actual people. Instead, their $500 billion proposal is targeted toward providing loan money to small-business owners—this time, Republicans claim, with additional protections to make sure the loans are given to small-business owners and not wealthy grifters looking for free money.
The Democrats want a much larger bill. The updated HEROES Act, which the Democrats put forward on October 1, calls for $2.2 trillion in spending, including direct stimulus payments to people who need them. As it is, that bill was pared down from an initial $3 trillion in proposed stimulus funding, and you could make an excellent case that even $3 trillion lowballs the scope of the problem.
The difference between the Democratic and Republican packages could conceivably be overcome by the GOP’s usual strategy of hostage taking. It can be fashionable to say that Democrats always “cave” when it comes to fully funding their stimulus programs; there’s a good reason Bill Clinton’s former labor secretary Robert Reich has spent the last 25 years demanding that Democrats do better. But there’s also an asymmetrical war going on. Democrats are trying to help people who are desperate and in need, but that’s also how Democrats talk themselves into the belief that “some” stimulus is better than “no” stimulus. We would normally expect Democrats to keep bargaining down until they reached a price point acceptable to miserly Republicans. It’s how Republicans usually win these fights.
However, there is a second policy principle at stake that the Democrats cannot cave on: the issue of liability protection for employers. McConnell has decided that he will not allow a stimulus bill to pass unless it includes a “get out of jail free” card for employers who, through pure greedy negligence, allow their workers (or customers) to catch the coronavirus.
The issue of liability protection can be difficult to understand as a moral imperative worth fighting for, but it is. Put simply, the fact that companies and businesses don’t currently have the cover McConnell wants to give them is the reason a lot of people are currently alive.
Here’s how the system works right now: Employers and businesses must take reasonable care to make sure that people don’t get sick or injured on their premises. There are entire canons of law centered around what “reasonable care” looks like, and what steps businesses must take while workers or customers are on their premises. Lawyers call this “tort law.” Tort law is generally left to the states, so the principle of “reasonableness” is more-or-less tied to your community and can vary. (My favorite example of this variation is animal attack laws: Florida will basically allow pets to eat trespassers; New York doesn’t even like dogs to bite other dogs; and Alaska pretty much assumes that you shouldn’t have messed with that bear.) But there are general principles. If I walk into a business and a piano falls on my head, I will most likely be able to sue that business, even if the business is called “Dangling Pianos Unlimited.”
The same laws governing a business’s liability for a falling piano should govern its liability for the coronavirus. If a restaurant seats you at a table under a hanging piano, and if it then falls on you, the restaurant cannot say, “Wile E. Coyote knew the risks when he sat down for dinner.” Similarly, if a restaurant seats you right next to a maskless MAGA bro, they shouldn’t be able to say, “You pays your money and you takes your chances.” Reasonable care right now requires businesses to take appropriate precautions to stop the spread of the virus.
McConnell wants to change all of that. He wants to exempt businesses from state tort liability in cases involving the coronavirus, remove all coronavirus tort claims to federal courts (recently stacked with judges approved by McConnell), change the standard for liability from “reasonable care” to “gross negligence” or “willful misconduct” by business owners, and, critically, require people to somehow prove that they got sick from that business and nowhere else.
All of that would essentially exempt businesses from any coronavirus responsibility. It would make it almost impossible for plaintiffs to prove they contracted an airborne virus from a negligent business, particularly in a world where the government does almost no contact tracing. Even if they somehow could prove where they got sick, the willful misconduct standard would be nearly impossible to meet. Consider the case of a restaurant where a waiter tests positive for an asymptomatic case of the coronavirus. A “reasonable” standard would involve expecting the employer to tell that waiter to go home and take care of themselves for 14 days (with pay). A “willful misconduct” standard would require something like ordering the waiter to come to work, and then ordering that waiter to lick all the plates. If McConnell has his way, liability will be functionally out of reach.
That’s unacceptable, because that fear of liability is probably one of the only things keeping businesses from giving in to pure profit motive during the pandemic. If you give businesses liability protection, they will force their workers to come in sick. They will pack too many people inside their storefronts. Liability is pretty much the only thing that is keeping business self-interest and best public health practices aligned.
Irresponsible states are already pushing for this kind of protection within their own borders. In Florida, where Governor Ron DeSantis has ordered businesses back open with no social distancing, in violation of common freaking sense, business leaders are saying they need liability protection to reopen safely. A number of states are considering some form of liability protection for their businesses.
Not to sound like a Republican who fetishizes federalism, but as I look at the coronavirus infections rippling through red states that have bought into Republican death cult chants of “herd immunity,” I think states should get to make their own tort laws about coronavirus, just like we let them make their own laws about animal attacks. New York, where I live, gave liability protection to hospitals, not strip clubs, then rolled that back, because New York has not yet completely lost its mind. The last thing I want is for McConnell to mandate that every state act as dumb and horny as Florida.
Is liability protection an issue that should hold up the entire coronavirus relief package? I think so. Because the lack of liability protection is literally saving lives right now. It’s saving the lives of workers who are not being forced back needlessly into enclosed spaces and packed close together while they perform their duties. It’s saving the lives of people who practice the kind of reasonable precautions that work only if most everybody else is doing the same. It’s the reason businesses have an incentive to enforce mask use and keep people socially distant. And it’s preserving the ability of states to make their own decisions based on the facts on the ground in their region.
McConnell’s Senate bill is trash. It doesn’t provide money to people who are suffering, and it doesn’t protect people from dying for capitalism. The Democrats must oppose it. Speaker Pelosi is said to be trying to craft a counteroffer in her negotiations with Mnuchin on liability protection. Anything that preserves a “reasonableness” standard or doesn’t offer blanket state tort immunity for businesses would be preferable to what Republicans want. This is an actual policy fight, and so the details matter.
This is the correct hill to die on. If business leaders won’t listen to doctors, we have to make them listen to lawyers.