This piece was originally published by The New York Times on May 25, 2020.
House Democrats have passed a new “phase four” $3 trillion coronavirus relief bill. You could call it an opening bid toward a package to support a sensible, deliberate economic reopening.
But Republicans are having none of it. No one has staked out the “no” position as starkly as Mitch McConnell, the Senate majority leader. He declared the bill “dead on arrival” upon its release. Weeks ago, when it was barely a twinkle in Nancy Pelosi’s eye, he asserted that “we can’t pass another bill unless we have liability protections.”
Unsurprisingly, the president agrees with Mr. McConnell that any federal cash to states must be conditioned on “lawsuit indemnification,” as he indicated in a tweet.
Democrats adamantly oppose removing a critical incentive for businesses to prevent workplace contagion and keep employees and communities safe. Insisting that they imbibe this specific poison is more than a hardball negotiating tactic. Mr. McConnell is essentially saying that the debate over the next round of coronavirus relief is finished before it starts because Republicans are in charge and their course is set: Americans will suffer for the Dow, Democrats can’t stop it, and negotiation over what else might be done will be limited to policy instrumental to the Trump-McConnell plan.
The ruling Republican approach to the economic crisis of mass social distancing seems to be to simply to cut it short, force a hasty reboot of the economy and recklessly gambleon penniless states and municipalities muddling through without creating too much politically inconvenient carnage.
The president’s repudiation of responsibility pushed the burden of pandemic control onto states with imploding budgets. Yet Republican leadership holds that states shouldn’t get a dime of additional aid unless, by agreeing to liability reform, they not only endorse the rush to re-engage the economy but also do so in a way that accepts that thousands more may sicken or worse in the push to kick America’s casinos and car dealerships back into gear.
It makes an appalling sort of sense. If your goal is to break America’s lifesaving resolve to maintain social-distancing measures or introduce reliable test-and-trace regimes, it can be counterproductive to relieve intensifying pressure on wrecked state and municipal budgets. Steadfast federal inaction will suffice to starve workers back into the yoke and compel governors and mayors fearing fiscal ruin and popular uprising to reopen.
The hitch in the plan for a blitzkrieg economic reboot, as Republicans see it, is that some business owners might hesitate to reopen if there’s a risk that employees who catch Covid-19 on the job might sue them for failing to take reasonable safety precautions.
But this isn’t really a problem. It’s an excuse to coerce Americans back to work by refusing desperately needed help.
You’ll notice that the Republican call for liability protectionamounts to a frank admission that in hurrying back to shops and offices, factories and showrooms, Americans might die. The wariness of business owners to expose themselves to the legal peril of reopening during an uncontained epidemic isn’t a problem. It’s a market signal telling us that for now, the risks of rushing to reopen might outweigh the rewards. If it were generally safe to reopen, Republicans wouldn’t need to shut this signal down.
That said, there’s really very little risk of “a second epidemic of frivolous lawsuits,” as Mr. McConnell heartlessly put it. Personal injury lawyers, who generally get paid only if they win or settle, are unlikely to pursue Covid-19 lawsuits against employers. It would be very difficult to establish precisely when and where someone caught the virus or to prove that a worker would not have picked it up but for their employer’s negligence. Nor is it likely to build a plausible class-action lawsuit by bundling together many injuries of such easily contestable origin. In any case, many employment agreements require workers to waive their right to join class-action suits. There will be no plague of ambulance chasers.
Still, our real problem, the first and actual epidemic, remains to be contained. According to existing liability law, businesses have little to fear if they take “reasonable care” to protect the health and safety of their workers. This means little more than following state and local reopening guidelines and adopting prevailing industry standards.
The demand for liability reform is just a pretext for disgraceful inaction — an excuse for legislative obstruction that attempts to cast Democrats as the obstruction’s source.
Democrats may have little power to stop the Trump-McConnell plan. But they can rattle Republican resolve to refuse aid to suffering workers and struggling states through brutal clarity about the shocking, electorally toxic reality of the Republican “plan” for our country.
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