Durbin leads opposition to COVID-19 liability shield with eye on Judiciary post

Senate Democratic Whip Dick Durbin (Ill.) is taking the lead on Democratic opposition to a business-friendly GOP proposal in coronavirus relief negotiations as he seeks the party’s top post on the Judiciary Committee.

Durbin is taking a tough line with Senate Republicans in their effort to limit the legal exposure of businesses to COVID-19 lawsuits, an issue complicating the passage of another relief package.

Senate Democratic Leader Charles Schumer’s (N.Y.) office has informed Democrats that Durbin is the lead negotiator with Republicans over liability protections, discouraging rank-and-file Democrats from peeling off and endorsing a compromise that falls short of what Democratic leaders are prepared to support.

Durbin held talks over the weekend with Sen. John Cornyn (R-Texas) in hopes of finding common ground on the thorny question of protecting employers from coronavirus-related lawsuits, but failed to make significant progress. Durbin, Cornyn and other senators met in the Capitol on Monday evening to continue the talks.

Cornyn earlier Monday called the talks with Durbin “very cordial” but fruitless.

“Basically, the trial lawyers don’t want any kind of liability reform and that’s what’s blocking this now,” he said.

Cornyn said the latest development on this front is that Sen. Mitt Romney (R-Utah) has proposed a retroactive “federal shield” for all of 2020 — a duration that goes beyond the six-month moratorium on COVID-19 lawsuits called for in last week’s bipartisan, bicameral relief bill that’s gaining traction in Congress.

Durbin has indicated support for the six-month protections, said Cornyn, who is backing the Romney proposal. Earlier this year, Senate Majority Leader Mitch McConnell (R-Ky.) wanted a five-year shield.

Cornyn said he’s “trying to support Sen. Romney” but that Durbin has shot his proposal down.

“So far there’s been no movement at all. It’s just rejection by Sen. Durbin,” Cornyn said.

Cornyn said the liability protection language included in any relief package must include curbs on plaintiffs picking and choosing among legal jurisdictions, a practice known as forum shopping.

Linda Lipsen, CEO of the American Association for Justice, a group that represents the interests of trial lawyers, said on Monday that “giving corporations immunity when they cut corners and endanger workers and consumers will prolong the pandemic and slow our nation’s recovery.”

“Despite the constant cries from Mitch McConnell and the U.S. Chamber [of Commerce], there has been no wave of litigation. And the cases that have been brought have exposed abhorrent corporate misconduct, such as management of a food-processing plant starting a betting ring on employees contracting COVID-19,” Lipsen said.

A GOP aide said Democrats are to blame for the stalled talks over the liability protections.

“While Republicans have offered multiple concessions … Democrats so far are not being constructive. Democrats continue to insist on the status quo, which has been rejected multiple times, allowing for a patchwork of state laws that would enable trial lawyers to forum shop,” a GOP aide said.

A Democratic aide familiar with the negotiations disputed that Republicans have made any significant concessions.

“Not true, Sen. Durbin didn’t receive any concessions or compromises or anything of the sort related to liability over the weekend,” said the aide. “Conversations are continuing.”

In the midst of the high-stakes talks, Durbin is running to succeed Sen. Dianne Feinstein (D-Calif.) as the top-ranking Democrat on the Senate Judiciary Committee and is facing opposition from some progressive groups who favor Sen. Sheldon Whitehouse (D-R.I.).

Democratic strategists predict that Durbin will make sure other members of the Democratic leadership and caucus sign off on any potential deal with Cornyn and the GOP.

“He can’t afford to cut what many on the left would consider a bad deal with Cornyn over these liability provisions,” said one Democratic strategist and former Senate aide. “This is going to be a little bit tricky for him.”

A Democratic aide familiar with the talks said Durbin’s negotiations with Cornyn are completely separate from his bid to become the top-ranking Democrat on the Judiciary Committee, which has jurisdiction over liability-related issues.

“That’s two separate tracks. He’s able to do more than one thing at one time,” the aide said.

A group of bipartisan lawmakers who unveiled a $908 billion compromise relief package last week have for the time being adopted “placeholder” liability protection language. They proposed a temporary six-month stay on lawsuits to give states time to enact their own laws to curb coronavirus-related liability, but the language as of last week was only sketched out.

Republican leaders and senior members of the GOP conference say the proposal to place a short-term moratorium on coronavirus-related lawsuits doesn’t go far enough to protect businesses from liability.

“This $908 billion bill just delays anything for six months to see if the states can act. What’s that going to accomplish? In Pennsylvania last week the Republican legislature passed liability reform and the [Democratic] governor vetoed it,” said Sen. Chuck Grassley (Iowa), a senior Republican on the Judiciary Committee.

“We should be passing something that’s going to have activity in all 50 states,” he added.

Grassley argued that businesses, schools, churches and other nonprofit groups should be protected from COVID-19-related lawsuits because it’s difficult to determine precisely how someone became infected.

“You don’t know where the fault lies. Did you get it at church or did you get it at the restaurant or did you get it at the workplace?” he said.

Grassley tested positive for the coronavirus last month and has since recovered.

Republican senators now say that if Democrats don’t give ground on the liability protection language, they’ll block $160 billion in proposed new federal aid for state and local governments, a top Democratic priority.

“The leader has made clear that state and local money is tied to liability protection,” Cornyn told reporters Monday afternoon. “There’s either going to be none or both of those are going to be provided for.”

McConnell has tied liability protection to additional state and local aide since the spring.

“Before we start sending additional money down to states and localities, I want to make sure that we protect the people we’ve already sent assistance to, who are going to be set up for an avalanche of lawsuits if we don’t act,” McConnell told the “Guy Benson Show” in April.

Schumer on Monday blamed McConnell for the impasse.

“Unfortunately, our efforts to pass another emergency relief bill through the Senate have been stalled until now for one reason: The Republican leader has refused to compromise,” Schumer said on the Senate floor.

“Again today we heard the same old song from the Republican leader. His position has not budged since March,” Schumer added.