Senate Majority Leader Mitch McConnell, R-Ky., announced Monday that he is willing to work with Democrats to pass another COVID-19 relief bill when his institution finally returns from an inexcusably long recess in May. But seasoned liberal observers would know that such announcements from him should offer as much apprehension as hope — and McConnell did not go against type.
His top priority isn’t addressing the myriad economic hardships facing most Americans, who have seen jobs evaporate, salaries cut, small businesses suffer, retirement accounts dwindle and may yet still take ill or die of the disease the government seemingly has no comprehensive plan to fight, but rather addressing what he called the “the lawsuit pandemic” by providing legal immunity to companies for lawsuits related to their actions during the pandemic.
Denying people — or their immediate loved ones — their day in court for pandemic-related deaths caused by negligence or other misconduct is a terrible idea. And it indicates that the differences between Republican and Democratic priorities couldn’t be more stark. Congressional Democrats are fighting for aid that will preserve essential services to ordinary people and reduce the economic misery inflicted by necessary stay-at-home orders, while Republicans are laser-focused on preventing powerful actors from being held accountable.
The American tort system is far from perfect, but it provides critical remedies to ordinary people who are otherwise at the mercy of more powerful actors. To immunize actors from lawsuits during a raging pandemic would be not merely unwise but also perverse: Decisions made by employers about whether and how to operate with a deadly and highly communicable virus circulating have potentially life-and-death consequences for employees and customers.
Providing them with legal immunity reduces their incentives to provide appropriate protective equipment to employees and provide safe environments to workers and customers. A world in which employers do not have to worry about being held accountable would be one with more crises like the current wave of COVID-19 infections at meat-packing plants.
The priority that McConnell is putting on legal immunity for companies also underscores how reckless and irresponsible premature Republican calls to “open up” the economy are. Trying to get closer to the pre-pandemic “normal” before the curve of new cases is truly flattened and no vaccine or even proven treatment exists carries massive risks to the public health. That McConnell thinks that companies that “help” to open up the economy face a high risk of being sued shows that he is aware of what a huge gamble is being made with the lives of working Americans.
McConnell’s demand for immunity is also part of a long-term bait-and-switch on the part of the American right. On the one hand, conservatives regularly call for the deregulation of business, and the Trump administration has made it a top priority to free corporations from public oversight. (Remarkably, while it wasted months without making meaningful efforts to secure protective equipment or increase testing capacity, the Trump administration has taken advantage of the pandemic to ram through new rules making it easier for companies to pollute the air.) And, in the libertarian theory on which such demands for deregulation ideologically rely, the tort system is a better institutional locus for remedies for corporate misconduct.
But then comes the switch: Republicans actively work to limit plaintiffs’ access to the courts to sue at all.
As William Haltom and Michael McCann detail at length in their book “Distorting the Law,” conservative attempts to limit access to the courts generally is generally paired with the demonization of trial lawyers, as well as misleading (and sometimes outright made-up) tales of outrageous jury verdicts.
The most famous example of this is the McDonald’s coffee case, in which an example of genuine corporate misconduct — the corporation ignored hundreds of complaints about scalding hot coffee, resulting in a woman suffering severe burns that required extensive surgery after an ordinary spill — into a rote punchline for a generation of stand-up comics and sitcom writers. McConnell’s invocation of “biggest trial lawyer bonanza in history” is very much in line with this tradition.
But Americans should really stop to think about the implications of McConnell’s assumption that acting to open up the economy in the short-term would necessarily result in a large number of successful tort claims.
It’s also worth contrasting what McConnell is holding hostage to try to get vast, unprecedented legal immunity for businesses.
The top Democratic priority in this round of negotiations it to secure aid to state and local governments that are besieged by a combination of plunging tax revenues and increased social welfare obligations. (It says something about the fundamental cruelty of the Republican conference that, in the last round of negotiations, they proudly denied aid desperately needed by Republican and Democratic-held statehouses alike, though state austerity measures would be a political disaster for President Donald Trump and incumbent Senate Republicans in an election year.)
Another top Democratic priority will be to secure funding for nationwide vote-for-mail, to prevent disasters like the recent election in Wisconsin in which Republican legislators and the conservative majority U.S. Supreme Court gave voters a choice between exposing themselves to a deadly virus or not voting in a state Supreme Court race (and the Democratic primary). The Democratic judicial candidate won, but the vote has been linked to 36 new coronavirus cases so far.
The office of House Speaker Nancy Pelosi, D-Calif., naturally dismissed McConnell’s proposal, stating that House Democrats have “no interest in diminishing protections for employees and customers.” Still, the leverage held by Senate Republicans will force difficult choices in the coming negotiations, as it has in the past. Democrats should nonetheless fight hard against the inclusion of broad legal immunity in any future relief package — and not even consider limited immunity without extremely heavy concessions on top Democratic priorities by Senate Republicans.