Senate Majority Leader Mitch McConnell has for months stonewalled a new round of coronavirus emergency relief, specifically digging in on liability protections for businesses as a "red line" in negotiations with House Democrats and the Trump administration. But with a government shutdown looming at midnight on Friday, negotiations on a new bill have in recent days inched forward, with McConnell signaling he would yield on his key sticking point, apparently in part because he fears another failed attempt would damage the two Republican senators facing tight runoff elections in Georgia early next month.
Still, McConnell will almost certainly not abandon his crusade for corporate immunity, which for months has stood in the way of much-needed relief for tens of millions of Americans struggling under the health and economic burdens brought about by the woefully uncontained coronavirus pandemic.
During that time, the issue has stymied talks not only with House Democrats, but also with the Trump White House. Observers expect that even if McConnell relents on the demand for now, he'll pocket it for leverage in future negotiations under Joe Biden's administration.
Last week, Rep. Katie Porter, D-Calif., attacked McConnell's demands as callous.
"These lawsuits represent the worst of the worst examples of disregard for human life — cases filed on behalf of nursing home patients and grocery store workers who died because the company in charge of keeping them safe prioritized cutting costs over protecting them," Porter wrote on Twitter. "The same McConnell who said that President Trump is '100% within his rights' to pursue baseless lawsuits alleging election fraud is now refusing to pass urgently-needed relief unless it strips those same rights from the most vulnerable among us. This must be exposed."
The same question was also raised in May, in a New York Times op-ed written by a trial lawyer, entitled, "Why Is Mitch McConnell Protecting Nursing Homes?":
While thousands of Americans perish daily from Covid-19, the Senate majority leader, Mitch McConnell, has chosen a scapegoat to distract from our government's failures. Claiming that the disease will become "the biggest trial lawyer bonanza in history," Mr. McConnell is drafting legislation to protect the nursing home industry from lawsuits — even though home residents and workers represent a third of the country's coronavirus deaths.
In October, the man who affectionately calls himself the "Grim Reaper" made a show of securing an extra $5.3 million in emergency relief for long-term care facilities in Kentucky. Just last week he announced that nursing homes in the state would see another $10 million.
"With promising signs of a vaccine on the horizon, now is not the time to lose focus on slowing the spread of this virus. I'm proud my CARES Act is continuing to invest in protecting Kentucky seniors and frontline workers," McConnell said in a statement.
In all, Kentucky nursing homes have received more than $180 million in federal coronavirus relief funds.
This issue, it turns out, happens to be of particular concern to one of McConnell's most loyal and longstanding allies: a prominent businessman and Republican donor in Kentucky named Terry Forcht.
Forcht is the founder and CEO of Forcht Bancorp, one of the largest financial conglomerates in the state, and he casts a long shadow in Kentucky Republican politics. His empire, the Forcht Group, is the parent company of 95 entities and employs more than 2,400 people, stretching to commercial real estate, insurance, retail and radio stations. He has a sprawling horse farm just outside Lexington.
The self-made multimillionaire has thrown money at local, state and federal conservatives for years, racking up well over a million dollars in contributions in that time. But perhaps even more important than the cash is Forcht's influence in the Republican stronghold of eastern Kentucky, home base to the Forcht enterprise, as well as his political connections to national heavyweights, including McConnell and legendary GOP strategist Karl Rove.
Forcht has been one of McConnell's top backers for decades, and in 2014 the majority leader offered a tribute to Forcht on the Senate floor. In fact, the two men are so close that McConnell penned the foreword to a biography of Forcht published earlier this year, a propaganda piece co-written by the Forcht Group's chief marketing officer. In it, the U.S. Senate's leader lauded Forcht as "a model Kentuckian and indeed, a model American."
One former Kentucky Democratic official described Forcht to Salon as "a devil of a motherfucker — as rapacious, insistent, hardcore a right-wing Republican as you can get."
"That's not an unexpected characterization," another state Democratic official told Salon. "He's no Joe Craft," the official continued, referencing a powerful Kentucky coal magnate, "but he's certainly plugged in. He can get a phone call answered any time."
That description seems accurate. The Louisville Courier-Journal reported in 2014 that Forcht's family and employees had given $1.1 million in political donations over the previous 11 years, almost exclusively to Republicans. Forcht contributed $3 million to create the Forcht Center for Entrepreneurship in the School of Business at the University of Louisville, and donated another $300,000 to finish a set of murals in the State Capitol rotunda in Frankfort.
In 2010, when Rove's American Crossroads super PAC had to set up its first checking account, it did not turn to a major national institution or a familiar bank in Washington, but went with regional Forcht Bank. According to a contemporaneous report in the Washington Post, the decision fell to Rove associate Mike Duncan, a former Bluegrass State banker and chair of the Republican National Committee.
The true font of Forcht's political influence, however, is his nursing homes. He started his first one in 1972 and today owns nine of them, but even at age 81 is by all accounts in no danger of needing to move into one himself. Forcht reportedly wakes up at 3 a.m. every day but Sunday, when he rises at 5. For his epitaph, Forcht has said he's considering: "I wish I could have worked one more day."
As of 2009, those nine homes were still Forcht Group's largest income stream. But in the era of the COVID pandemic, those facilities, as well as Forcht's insurance outfits, suddenly loom large as liabilities — especially in Kentucky.
"He would certainly want to limit his exposure. He's in both long-term care and insurance, so he's got a keener awareness for the dynamics," a Kentucky Democratic official told Salon. "And he's vertically integrated, with the homes, the banking and insurance. He built his empire like that over time, owning these franchises in rural areas, then slowly moving into Lexington. He's pleasant, and portrays himself as a homegrown east Kentucky guy, but he's got a patrician air."
Earlier this month, with McConnell dug in on liability protections, 96 residents and 42 staff members tested positive amid an outbreak at a Forcht home in Hazard, Kentucky, which had already seen at least four deaths. State statistics and national Medicare database show that Forcht's facility in Williamsburg has seen at least 66 cases and 12 deaths so far. Forcht's Knott County facility has reported at least 45 cases and eight deaths, while another in Hillcrest registered at least 198 cases and nine deaths. This fall, Forcht homes saw a series of outbreaks that have made Kentucky news.
There has already been at least one large, multimillion-dollar negligence civil suit filed against an elderly care facility in the state. Additionally, the price of nursing home care in Kentucky this year rose faster than national trends, and business costs and risks are expected to lead to rate hikes in 2021, according to an annual survey from Genworth, an insurance firm that specializes in long-term care.
All the while, Mitch McConnell has held a national relief package hostage to five-year extended business liability protections.
Although Forcht's multiple insurance assets also stand at increased risk, nursing home liability is an especially sore spot — his facilities have a troubled history.
In 2010, when Karl Rove's American Crossroads opened its Forcht Bank account, then-Kentucky Attorney General Jack Conway was investigating allegations of sexual abuse at one of the facilities. Conway, a Democrat, was concurrently challenging Republican nominee Rand Paul for an open U.S. Senate seat — a race Paul would go on to win, boosted by the nearly $2 million that American Crossroads poured into attacking Conway, including radio spots. (Forcht owns 22 radio stations.)
On separate occasions in 2009, two male residents in Forcht's Hazard Health and Rehab home sexually assaulted a 91-year-old Alzheimer's patient, once within sight of one of the home's supervisors. The home escaped criminal liability by paying a $20,000 fine. In the same home, a dementia patient fell 11 times, breaking a hip before she was moved out. Another Hazard resident died in 2006 with "a gaping pressure ulcer and bedsores," according to the Kentucky Center for Investigative Reporting.
The cases went to court. One was settled for an undisclosed sum. A jury awarded the family of the dementia patient $300,000, including $225,000 for the home's "reckless disregard."
In another negligence case, also settled in 2010, a jury awarded $7 million to a former resident of Forcht's Hillcrest Health & Rehab who ruptured fresh sutures around her knee when she fell trying to reach the restroom. A home employee had reportedly refused to help her, and placed the call button out of reach.
"The nurse who came in and found her said that it was a horrific sight," said an attorney representing the resident, who had to be resuscitated due to blood loss and spent two months in the hospital.
Following that spate of suits, Forcht tried to change the state's medical liability laws. For the next several years, he pushed Republican lawmakers to pass legislation that would require all claims to be vetted by panels of "health care providers."
In 2017, he got his wish. But it didn't last: One year later, the Kentucky state Supreme Court struck down the law as unconstitutional.
"Republicans in the state have sort of kept a distance from him since then," a Democratic official told Salon. "They feel a little burned, a little embarrassed at how quickly that fell apart."
That did not diminish Forcht's influence in the state. In 2019, amid outgoing Republican Gov. Matt Bevin's spree of more than 400 pardons and commutations, Forcht helped convince Bevin to pardon convicted murderer Patrick Baker — and his involvement made national news.
"Letters show Forcht twice recommended Baker for a pardon and Bevin obliged, over the advice of former state Rep. Denny Butler, an investigator looking into Baker's case on Bevin's behalf," according to The Courier Journal.
Forcht had hosted a fundraiser for Bevin in March of that year at his London, Kentucky, home, which raised $33,150. Four years earlier, he had contributed $100,000 to Bevin's 2015 inaugural.
Asked about the decision in an interview on Kentucky's WHAS, Bevin praised Forcht as a philanthropist and "one of the most generous people in Kentucky."
"Why vilify a guy like that simply because he had an opinion of somebody who was incarcerated?" Bevin wondered.
McConnell, by that time back on the ballot for the 2020 election, expressed disgust at what he called the "completely inappropriate" pardons, which extended to rape, murder and drug offenses.
"I expect he had the power to do it, but looking at the examples of people who were incarcerated as a result of heinous crimes — no, I don't approve of it," he said.
Two months later, however, McConnell attended his own campaign fundraiser at Forcht's home.
Richard Beliles, chairman of Common Cause Kentucky, a group that advocates for accountability and equity in government, has stood opposite McConnell on most issues for decades, specifically campaign finance. He told Salon that Forcht and McConnell likely have a broader long-term goal, and may be trying to wrap otherwise untenable liability protections in the bunting of the pandemic.
"These liability protections might help someone like Forcht, but many more people who may be accidentally injured, they're sort of out of luck," Beliles said.
Indeed, McConnell wants the shield to last for five years, longer than even some of his Republican colleagues, though last week he appeared to back off. If Republicans and Democrats can't come together on a package by midnight on Friday, the government will shut down, with only a month to go until President-elect Joe Biden's inauguration.
"I'm hoping that maybe now, with Biden coming in, [McConnell] can do everything right for this issue that affects the needy in this country," Beliles said. "I know we really need it, the people of Kentucky need it."
"I guess I sound like an optimist, in terms of cooperation between the Democrats and Republicans," Beliles added. "But if we're this close, I don't want to offend him."
Neither the Forcht Group nor McConnell's office replied to Salon's requests for comment.