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Unsanitized: The COVID-19 Report for Dec. 7, 2020

Key Senate Democrats May Agree to McConnell's Corporate Immunity
Measure

Sens. Warner, Manchin, and Shaheen are conceding to McConnell's
expansive language, sources indicate

 

Sen. Joe Manchin (D-WV) is among the members of Congress involved in
bipartisan coronavirus relief talks. (Michael Brochstein/Sipa USA via
AP)

First Response

Talks on a coronavirus relief package have heated up. In the first real
movement since the passage of the CARES Act, Mitch McConnell
participated in actual talks, a half-hour call with Nancy Pelosi, aimed
at finding relief measures to stick into a government funding package
(authority to fund the government runs out on Friday). Because it takes
time to translate negotiations into legislation, Congress might pass a
one-week continuing resolution
on funding,
giving time to negotiators to settle the deal.

But there are actual negotiations taking place, among the people who
actually matter. Senators in both parties fanned out on the Sunday
shows; one, Sen. Bill Cassidy (R-LA), expressed that Donald Trump would
sign

the $908 billion bipartisan "Gang of 8" package, which Nancy Pelosi,
Chuck Schumer, and Joe Biden have already endorsed as a starting point
for negotiations. Both sides said there was a lot of work to do but that
failure was not an option.

The big reason why McConnell is coming to the table after all these
months is easy to see: his control of the Senate could depend on passing
relief. The latest poll in the Georgia runoffs
,
from a pollster that nailed President-elect Biden winning the state, has
both Jon Ossoff and Raphael Warnock winning their races. Sens. Kelly
Loeffler and David Perdue are running on delivering a relief package
, and if
they don't, it's open season on them with a few weeks to go. It's
in every Republican's interest to keep their little gavels and nice
offices, and moreover, red states are suffering the biggest revenue
shortfalls
,
so the state and local aid in the package will help as well.

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This desperation to save the Senate majority hasn't tempered
McConnell's insistence on an incredibly broad liability protection for
corporations that expose workers or customers to coronavirus. And
according to sources close to the negotiations, at least three Senate
Democrats-Mark Warner (D-VA), Joe Manchin (D-WV) and Jeanne Shaheen
(D-NH)-are willing to go along with the McConnell language, which
would not just fundamentally change the ability for individuals to sue
over COVID infections, but could permanently safeguard corporations from
the consequence of their own negligence.

McConnell has been seeking this liability protection since April
,
warning darkly of an "avalanche" of lawsuits against poor,
defenseless businesses for eight months. This wave of lawsuits simply
has not happened. The COVID-19 complaint tracker
from law firm Hunton
Andrews Kurth shows that, out of 6,500 pieces of COVID-related
litigation, only a couple hundred cases involve wrongful death or
conditions of employment (like lack of PPE or exposure to COVID-19 at
work). More to the point, there's no sign of a wave of cases to come,
because they would be extremely hard to pursue and prove
,
especially if you have one or two exposed individuals against a big
corporation with a legal department. These cases are taken on a
contingency basis, meaning that lawyers can only really afford to take
them up when there's a clear sign of negligence.

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Yet McConnell continues to demand the same five-year liability
protection
he
first released with Sen. John Cornyn (R-TX) in July. It would move all
covered tort cases to federal court, where the far-right judges
McConnell has spent four years confirming would get their hands on the
cases. It changes the rules of civil procedure, including a heightened
(and potentially impossible) burden of proof and damage caps. It bars
federal agencies from enforcing or even investigating workplace
standards. It limits liability for PPE that causes injury, as long as
the FDA approved it. And it amends the WARN Act, which requires notice
for mass layoffs, for the duration of the emergency.

Even Sen. Lindsey Graham (R-SC), chair of the Senate Judiciary
Committee, said in a hearing on corporate liability
,
"We're not going to preempt all state laws here about everything... We
need to make sure that bad actors are not given a break." But that's
exactly what McConnell-Cornyn would do. And even if cases were already
hard to prove, a liability release would likely make businesses more lax
on coronavirus protections, freed from any accountability in the
aftermath.

The concern among worker advocates is that the McConnell-Cornyn language
becomes a "camel's nose under the tent," which then becomes
impossible to dislodge and a permanent feature of workplace law. The
bipartisan $908 billion proposal included a temporary liability release
,
to give states the time to fashion standards for negligence in
COVID-related cases. But my sources say that McConnell has rejected
this, and continues to demand his language as a red line.

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A working group negotiating the relief package, led by Sen. Dick Durbin
(D-IL), has attempted to offer other options to address COVID exposure
litigation that fall short of corporate immunity. But Durbin has been
undermined by Sens. Warner, Manchin, and Shaheen, who are willing to
take the deal. The sources likened it to a hostage situation, with
McConnell demanding his language without much of a policy rationale, and
the three Democrats grudgingly acceding to it.

Sens. Manchin and Shaheen did not respond to a request for comment. Sen.
Warner's office referred to his appearance yesterday on CNN with Jake
Tapper, who asked him about Sen. Bernie Sanders' (I-VT) rejection of
the bipartisan package
,
in part over the liability measure. "Senator Sanders, respectfully, is
not involved in these negotiations," Warner replied, arguing that the
bipartisan bill just seeks "to give some level of a time-out to allow
states, if they want, to put in place standards." He called
negotiations on liability protection "vigorous and ongoing."

But unsaid here is whether Warner would be willing to go along with the
much more permanent McConnell-Cornyn language, as my sources indicate.
After discussing liability, Warner pivoted to saying that people
desperately need relief, due to expiring unemployment measures and
eviction moratoria, due to the lack of rental assistance, due to no
funding for small business survival.

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Does all of that offset what could morph into a fundamental change in
worker and consumer ability to hold corporations accountable in court?
The notorious case of Tyson Foods managers betting on which of their
line workers

would get COVID would fall under this liability protection. The
situation with Amazon having at least 20,000 frontline employees

test positive for COVID-19 would also fall under the immunity clause.
(For the record, Amazon employees and the company's PAC are one of
Warner's top contributors
).
Should those companies, even if negligence were found, be allowed to
walk away?

Democrats have moved significantly off their initial topline numbers.
They've deferred another $1,200 stimulus check. Durbin is battling to
find some other way to address liability, which would still be movement
from the initial demand of no special protections for corporations. But
if his colleagues are willing to concede on liability protection, it's
hard for him to mount a defense. It will also be hard to follow on to
this bill, if needed, with the more economic stimulus that will be
needed

when Biden becomes president, if the leverage on liability is taken off
the table.

McConnell is the one who needs a bill to save his position as Majority
Leader. Will Democrats give in on the thing he really wants out of the
deal in the process?

Days Without a Bailout Oversight Chair

255
.  

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Today I Learned

* The pause on federal student loan payments has been extended for
another month

to January 2021. (MSN)

* The CDC eviction moratorium has not stopped thousands of people from
being evicted
.
(CNBC)

* I'm very concerned about the supply chain for billions of doses

of vaccines. This is not a project we have ever dealt with before at
this scale. (Wall Street Journal)

* China, meanwhile, is rolling out vaccines

on a wide scale. (Bloomberg)

* The vaccine design really is a miracle and could lead to a whole new
area of biotech
.
(Salon)

* Europe stumbled, but had a plan, and is now bringing down case counts

and deaths. We are... not doing that. (Washington Post)

* Rudy Giuliani has COVID and he's been on a tour spreading it across
every battleground state

where he's failing to overturn election results. (Political Wire)

* A smartphone-based COVID test

that can read RNA? (UC-Berkeley)

* The slow death of Hollywood Boulevard
.
(Los Angeles Times)

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