One of the deepest partisan divides in the eight-month long push for another coronavirus stimulus bill is over the question of liability protections for businesses.
Senate Majority Leader Mitch McConnell (R., Ky.) has long called the provisions essential for another deal. In fact, the L in his HEALS Act stands for liability protections.
In a recent Fox News Radio interview, McConnell said the provision “keeps hospitals, doctors, nurses, colleges, universities and businesses from being sued over how they handle the coronavirus.”
Democrats have long resisted the provision and New York Sen. Kirsten Gillibrand went even further on Thursday in an interview with Yahoo Finance.
“If we just caved into Mitch's demands, it would really harm the country,” she said, adding, “one of the poison pills in Mitch's bill right now is blanket liability protection.”
There could perhaps be a space for compromise between the two sides over the word “blanket.” (the legislation would shield businesses against most lawsuits connected to the virus from December 2019, before the first U.S. COVID-19 case was identified).
During a speech this summer on the Senate floor, Sen. John Cornyn (R., Texas), a McConnell ally, tried to draw a distinction: “to be clear, this is not a blanket liability shield.” He said the provision will not prevent bad companies “from facing the consequences of their actions when they are intentional or reckless.”
In the past, McConnell himself has described the liability protections as “narrow.”
Gillibrand pointed to recent examples of meat-packing plants in places like South Dakota where “COVID ran through those meat facilities like wildfire.”
“Without any ability to hold an employer who doesn't take the lives of his workers seriously and care, then you're putting a lot of workers and a lot of Americans across the country at grave risk.” she said.
Negotiators like Rep. Nancy Pelosi (D., Calif.) have said it’s unlikely she would ever agree to a deal that would tell businesses – in her words – “you're off the hook if anything happens” with coronavirus infections.
‘We don't like to be bullied’
One possible area of compromise was recently laid out by two law professors in a Washington Post op-ed. They proposed that, instead of broad liability protections to businesses, provisions should be drafted to reward businesses that take positive actions to limit the spread of the virus with some degree of immunity from lawsuits.
But of course it’s unclear if the two sides in Washington are looking for compromise even with the news Friday that Treasury Secretary Mnuchin will start talking with his Republican colleagues again about passing “targeted” stimulus.
Gillibrand said things like liability reform could be a bigger problem for her than the overall price tag of any final deal. “We don't like to be bullied into bad policy,” she said. “I think the Democrats in the Senate would negotiate, would lower their total number, but not at the price of harming employees.”
Ben Werschkul is a writer and producer for Yahoo Finance in Washington, DC.