Democratic unity starts to crack in coronavirus liability reform fight

A group of moderate Senate Democrats say they are open to considering liability protection for businesses in the next round of coronavirus relief legislation, a crack in Democratic unity that gives Republicans and the White House some leverage.

Senate Democratic Leader Charles Schumer (N.Y.) and Speaker Nancy Pelosi (D-Calif.) have rejected Republican demands for liability protection, but some rank-and-file Democrats say it could be appropriate in certain circumstances.

Sen. Christopher Coons (D-Del.) says he wants some form of liability protection for businesses to be included in the next coronavirus relief bill but also framed it as something that could help workers.

"The simplest and most powerful solution to liability protection is to have a science-based, enforceable standard for the protection of employees and customers," said Coons, a close ally of presumptive Democratic presidential nominee Joe Biden.   

“I don’t support a path forward where we don’t offer clear regulatory guidance and don’t offer liability protection for workers,” he added. 

Coons said the federal government should provide businesses with liability protection in exchange for firms following national standards to protect workers. He suggested the Occupational Safety and Health Administration (OSHA) as the agency best suited to issue national guidelines.

“That’s what OSHA exists for,” he said.

He also said a national standard would make it easier for businesses that operate across state lines.

“I’m from a part of the country where I can be in three other states in 15 minutes from my house. For a restaurant doing delivery or a small trucking company or a regional law firm, I think a national standard makes a lot of sense,” he said.

At a hearing earlier this month, Coons said he does not support a “blanket immunity law” that protects all employers but instead wants protections that distinguish responsible from irresponsible businesses.

“There seems to be a broad bipartisan agreement that our laws shouldn’t treat responsible and irresponsible employers the same,” he said.

Coons noted the wave of coronavirus lawsuits predicted by Republicans has yet to emerge. 

Sen. Doug Jones (Ala.), the most vulnerable Senate Democrat running for reelection this fall, said he’d like to see a compromise on liability protection.

“We got to have a balance on some things. I’m not going to give a blank check and blanket immunity to somebody. At the same time, I think we have to be very careful in protecting businesses,” he said. “I think we can find an appropriate balance if it doesn’t get into partisan politics. I hope we can figure it out.”

Jones expressed frustration over the lack of serious talks between Schumer and Senate Majority Leader Mitch McConnell (R-Ky.) during the May work period.

“There is an urgency to start talking about it and see where we are,” he said. “We need to start talking now.”

Jones said he wants to see senators come together on a bipartisan agreement that can pass unanimously, like the $2.2 trillion CARES Act did in March.

He said if leaders in both parties give ground, they can move “something on the floor of the Senate that gets overwhelming bipartisan support.”

The Senate Judiciary Committee held a hearing on liability protection in mid-April, and Sen. John Cornyn (R-Texas), a member of the panel, is helping to negotiate a GOP bill to protect businesses from lawsuits.

Cornyn told reporters recently that he’s “not talking about blanket immunity” but instead wants to require “higher standards of proof” for coronavirus-related lawsuits.

“The threat of litigation can be as much a deterrent on reopening the economy as anything else,” he said. “Around the margins it could make the difference between businesses deciding to reopen and deciding to throw in the towel.”

An aide to Cornyn said he had no announcement Monday on when Cornyn will unveil his proposal, which he is crafting with other GOP senators.

McConnell has insisted since late April that liability reform must be part of the next coronavirus package from Congress.

“My red line going forward on this bill is we need to provide protection, litigation protection, for those who have been on the front lines,” the GOP leader told Fox News on April 28.

“We can't pass another bill unless we have liability protection,” he declared.

Schumer and Pelosi have dismissed the demand as a giveaway to corporate America with little public support.

“Is that the No. 1 problem for people who are losing their jobs, people whose small businesses are going bankrupt, people who can’t feed their kids — protecting corporations from liability?” Schumer said on the Senate floor recently.

Pelosi told reporters in late April that Democrats “would not be inclined to be supporting any immunity from liability.”

Other Democrats, however, have signaled more willingness to discuss limited liability protection. Sen. Tom Carper (D-Del.), who like Coons is a moderate, said liability reform is “an issue that interests me.”

“In the earlier days on class-action reform and asbestos litigation reform, which are first cousins to this issue, I was always interested in seeing if there’s a principled middle ground, and I’m sure my staff and I will be involved,” he said.

Carper said he would focus more on the issue as talks over the next phase of relief legislation pick up.

Sen. Joe Manchin (D-W.Va.) says he would support liability protection for small, privately owned businesses.

“These smaller businesses we have to be very careful how we protect them,” he said.

Asked if small businesses should get liability protection, Manchin said: “I’m looking at that.”

“If I can help smaller businesses, I will,” he added.

“I’m not in favor of any publicly traded companies having that type of protection because they’re not answering to the public, they’re not answering truly to their workers, they’re answering to their shareholders. So it’s a whole different pressure point,” he said.

Sen. Jeff Merkley (D-Ore.), a more liberal member of the Democratic caucus, said national standards for workplace safety should be included in the next coronavirus package.

“We have to be watching out for both the customers and the employees. In fact, that’s essential for economic recovery,” he said.

Merkley indicated he would be more open to enacting liability protection if Republicans agree to national workplace safety guidelines.

“If we’re talking about liability protection if you are following well-designed guidelines implemented faithfully and truly, that’s a different question,” he said.

Sen. Maria Cantwell (Wash.), the ranking member of the Senate Commerce Committee, said she’s not a fan of what McConnell has proposed out of the gate but that she’s willing to keep an open mind.

“I’ll listen to what the debate is, but I don’t think what the Republicans are suggesting is the right track,” she said.

Senate Democratic Whip Dick Durbin (Ill.), another member of the Judiciary panel, said some moderate liability protections may be in order.

“I think Lindsey Graham identified it at the early stage of the hearing. We need to establish scientifically based, medically based standards for good conduct by businesses,” he said, referring to the Judiciary Committee’s hearing earlier this month.

Durbin said the biggest obstacle to a compromise is the White House and U.S. Chamber of Commerce, which oppose national coronavirus-related workplace standards.

“The White House doesn’t want to do that. They don’t want to establish federal standards. The Chamber of Commerce opposes any regulations that are enforceable. So they’re kind of in a dilemma. They want government immunity, but they don’t want to establish good conduct standards, which could be a defense for any business,” he said.

Durbin said, however, it makes sense to hold large companies and small businesses to different standards for coronavirus-related liability.

“The fellow who owns the hot-dog stand in Chicago, and we have a lot of them, might have two employees, is going to be held to a different standard than Boeing Aircraft,” he said.