Bipartisan committees in both the House and Senate recently announced that they have split up their $908 billion COVID relief bill into two separate parts in hopes of getting something passed later this week.
The split indicates that Congress will likely put off COVID liability protections again until January. Frankly, that’s a terrible idea.
The hold-up comes from resistance from Senate Minority Leader Chuck Schumer (D-N.Y.), and Democratic Whip Dick Durbin (D-Ill.), both of whom continue to fight a temporary liability shield for good faith actors tooth and nail.
If Sens. Schumer and Durbin are adamant about doing the bidding of trial lawyers, they would be better off writing a taxpayer-backed check directly to the trial bar.
Durbin, who serves as the Democratic Party’s lead negotiator on liability protections, held talks over the weekend with Sen. John Cornyn (R-Texas), on the issue. The Texas senator reported that the discussion, while cordial, was fruitless because “Basically, the trial lawyers don’t want any kind of liability reform and that’s what’s blocking this now.”
It shouldn’t surprise anyone that these two Democratic leaders continue to do the bidding of trial lawyers. Attorneys have given Schumer over $1.6 million this campaign cycle and Durbin $1.4 million. Clearly, they’re seeing eye-to-eye on something, and it’s not on the needs of American consumers and businesses.
It’s frustrating to watch a few Democrats play politics with people’s livelihoods by holding up this needed legislation. I say “few” because other Democrats aren’t pretending to be blind to businesses’ need for protection from frivolous COVID-19-related lawsuits.
Governors Andrew Cuomo (D-N.Y.), and Gretchen Whitmer (D-Mich.), both extended limited liability shields in their respective states, as did plenty of other blue and red state governors. Like the bipartisan coalition of 21 state attorneys general that has urged Congress to act, these governors recognize that legal protections for those at serious risk of unfair litigation is a necessity.
At the time of publication, the Hunton Andrews Kurth COVID-19 Complaint Tracker has already identified over 6,700 pandemic related lawsuits. Many of these suits are entirely unnecessary and ambulance-chasing in nature. A study released by economist Stephen Moore and Donald Kochan, a law professor at George Mason University’s Antonin Scalia Law School, has found that these suits’ implications for Main Street couldn’t be more severe. Their research indicates that this COVID-related litigation could reduce U.S. employment by up to $1 million and wages by as much as $50 billion.
Congress agrees that hundreds of billions more in relief spending is necessary because there isn’t a small business in this country whose finances have done well over the last nine months. How, then, would it make sense to inject $900 billion more into the economy to save those struggling businesses if trial lawyers who are out for big paydays can cancel out the gains with mountains upon mountains of lawsuits?
If Sens. Schumer and Durbin are adamant about doing the bidding of trial lawyers, they would be better off writing a taxpayer-backed check directly to the trial bar, cutting out the small business sacrificial lambs from the middle.
Deep down, however, they both must know that we’ll have to reopen this country at some point, and there isn’t going to be a day when the virus is magically gone. Like it or not, our economy will open with the virus still floating around, and some federal liability protections will be necessary for businesses to reopen safely without fear of trial lawyers emptying what’s left of their depleted cash reserves.
Pushing the liability debate into the new Congress would mean that Georgia’s senatorial runoff could break or solidify the Durbin–Schumer hold. Whether it’s David Perdue, Jon Ossoff, Kelly Loeffler, or Raphael Warnock, the winners in Georgia need to make overcoming this hurdle a crucial part of their early session activity. Their votes may become the last line of defense the American people will have from courtroom leeches.
Roger D. Klein, M.D., J.D., is a Policy Adviser to the Heartland Institute and serves as an expert with the Federalist Society’s Regulatory Transparency Project. He is a Faculty Fellow at the Center for Law, Science & Innovation at the Sandra Day O’Connor College of Law at Arizona State University and has been an adviser to the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS), and the Food and Drug Administration (FDA).