Democrats Say Covid-19 Legal Liability Protection Is A Dealbreaker In Congress, But Not In The States

The enactment of a new Covid-19 relief package appears to depend on whether Speaker Nancy Pelosi and fellow Democrats will accept virus-related legal liability protections for businesses, a top priority for Republicans, in exchange for additional financial aid for state governments, which is a top priority for congressional Democrats. Speaker Pelosi, Senate Minority Leader Chuck Schumer, and fellow Democrats have insisted such liability protection is a deal breaker for them in the past, but they may be coming to the realization that conceding liability protection is the only way to achieve a compromise that includes the state aid sought by Democrats. 

Speaker Pelosi’s position that Covid-19 legal liability protection is a non-starter might not be surprising to those familiar with the influence of the trial bar in Democratic Party politics, but it is incongruous with what has occurred in the states so far this year, where state-level legal liability protection bills have passed with both Democratic and Republican votes. 

Take North Carolina, where state government is divided, with a Democratic Governor in Roy Cooper and a Republican-run state legislature. In May, Covid-19 legal liability protections were approved with a unanimous vote with both chambers of the North Carolina General Assembly before being signed into law by Governor Cooper. If Governor Cooper and state legislative Democrats in North Carolina understand the need for Covid-19 legal liability protections, why don’t their fellow Democrats in Congress? That’s a question many have for Speaker Pelosi and Senate Minority Leader Schumer. 

Louisiana is another state where a Democratic governor and a Republican-controlled legislature teamed up to pass Covid-19 legal liability protection for employers in June. The bill was approved unanimously by the Louisiana House, and by a 28 to 7 vote in the Pelican State Senate. Even in Nevada’s Democratic-run legislature, Covid-19 legal liability protection for businesses was approved with bipartisan support.  

In fact, of the 11 states where broad Covid-19 legal liability protection legislation has been approved, the Ohio Senate and the Tennessee Senate were the only legislative chambers where Democrats did not vote in favor of the bill. Though zero Democrats in the Ohio Senate voted for Covid-19 legal liability protection, most Democrats in the Ohio House voted in favor. While all four Democrats in the Tennessee Senate opposed legal liability limits, nearly half of the Democratic caucus in the Tennessee House voted in favor.

“We were pleased in Tennessee that legislators on both sides of the aisle voted in favor of Covid-19 liability protection,” said Jim Brown, Tennessee State Director for the National Federation of Independent Business. “Elected officials heard from thousands of businesses, schools and non-profits that they could be put out of business unless reasonable protections were passed.”

In a letter sent in early August, 22 state attorneys general applauded liability limits enacted in the states, while still calling on Congress to pass federal protections for Covid-19 legal liability. 

“As you are probably aware, states across the country have taken steps to address the need for timely, targeted and temporary civil liability protections in light of the pandemic, but the need for a uniform national baseline of liability protection still exists,” wrote the coalition of Republican of attorneys general led by Chris Carr of Georgia and Sean Reyes of Utah.

Senate Majority Leader Mitch McConnell stated in a CNBC interview that the way he sees it, “most importantly, to help the economy get back on its feet, liability protection” needs to be enacted, adding that doing so will “preserve hospitals, doctors, nurses, universities, colleges, K-12 from being hit with an epidemic of lawsuits on the heels of a pandemic which we all know is not over.” When it comes to the importance of Covid-19 legal liability protections for employers, Leader McConnell says “there’s no chance of the country getting back to normal without it.”

We’ll soon find out whether Speaker Pelosi, Senate Minority Leader Schumer, and their Democratic colleagues will accept a new Covid-19 relief package that includes legal liability protection for employers in exchange for more state financial aid. If Pelosi, Schumer, and company maintain their position that liability protection for business is a poison pill, not only would that likely kill the possibility of a new relief package, it would be out of step with the way Democrats have voted in the states.