Last Tuesday, the US Senate passed a bill that encourages and allows state and local governments to punish individuals or companies that engage in direct or perceived boycotts of Israel and its settlements in the occupied Palestinian West Bank.
The “S.1, Strengthening America’s Security in the Middle East Act of 2019” which comprises of four bills on security cooperation with Israel and Jordan, Syria sanctions and includes the controversial Combating BDS (Boycott, Divestment and Sanctions movement) Act, was approved by a vote of 77-23.
It is now with the House of Representatives, which needs to pass it before it becomes law.
The Democratic-majority House might, observers say, separate the four bills to make for smooth approval of the first uncontroversial three, and allowing the anti-BDS bill to wait or be subject to amendments.
The bill, which was sponsored by Republican Senator Marco Rubio, was introduced to the Senate in its first session on 3 January during the partial federal government shutdown, which was the primary reason it was blocked repeatedly. Once the shutdown ended 25 January, the bill was quickly advanced, passing with a majority vote 5 February.
The American Civil Liberties Union (ACLU) said the legislation would encourage states to pass unconstitutional laws that would require government contractors — including teachers, lawyers, speech pathologists, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in politically-motivated boycotts against Israel.
Federal courts in Arizona and Kansas recently blocked such state laws on First Amendment grounds, and 13 of the country’s most prominent constitutional scholars — including the former deans of Yale Law School and the University of Chicago Law School and the current dean of the UC Berkeley School of Law — filed a legal brief explaining that these laws violate the First Amendment.
In response to the Senate’s vote to pass the bill, ACLU senior legislative counsel Kathleen Ruane said the upper chamber of Congress “chose politics over the Constitution and trampled on the First Amendment rights of all Americans”.
“We encourage each senator who voted for this bill to read the Constitution and understand the protections it affords individuals against the unconstitutional, McCarthy-era tactics this bill endorses. We also thank each senator who stood strong in defence of the First Amendment and voted against this bill. Should the House take up similar legislation, we urge it remove the Combating BDS Act from the package of bills due to the threat it poses to all Americans’ First Amendment right to boycott.”
The ACLU said that in cases going back to the McCarthy era — when the government required employees to swear that they were not members of the Communist Party or engaged in “subversive” advocacy — the Supreme Court has made clear that the government cannot force individuals to choose between their livelihoods and their freedom of speech.
The civil rights organisation — which takes no position on BDS — has actively opposed state anti-boycott bills targeting boycotts of Israel in state legislatures and in federal courts, and secured two federal court victories in Kansas and Arizona, defending the right to boycott, which is protected under the First Amendment.
More than half of the 50 states have anti-BDS laws or executive orders coming to force over the past few years. While the state of South Carolina was the first to pass such a law in June 2015, the trend picked up following the election of President Donald Trump who took office in 2017.
The BDS movement is inspired by and modelled on the anti-apartheid movement against South Africa in the 1970s and 1980s.
Proponents of the new bill deny that it violates the American Constitution, arguing that states have the right to boycott the boycotters.
The fate of the anti-BDS bill in the House is unclear, but its advancement has exacerbated two debates, on the Democratic Party’s divide over Israel, on the one hand, and whether the bill actually violates the constitution, on the other.
The Democratic vote on the bill in the Senate was clearly split: 25-22 (while all Republicans — with the exception of one — voted for the bill).
The Israeli-daily Haaretz picked up on the meaning of the Democratic vote and the internal debate it has sparked. “Democrats are convinced that the entire purpose of the Republican decision to add the anti-BDS bill into the broader Middle East package was to orchestrate an intra-Democratic fight over the issue, and force many Democrats to choose between their position on the free speech criticism of the bill and their general opposition to BDS,” Haaretz’s Amir Tibon wrote 10 February.
As a result, the Democratic-majority House is expected to approach the bill with caution to avoid a repeat of that scenario by breaking up the legislation into four separate bills.
In an opinion piece published by Bloomberg last week, Noah Feldman, a professor of law at Harvard University, said the bill is “symbolic”.
“The bill essentially declares that if states want to pass measures targeting companies that boycott Israel, nothing in federal law prohibits the states from doing that.”
“Nothing that the bill does is inherently unconstitutional,” he wrote. “But it implicitly endorses unconstitutional laws — and that is enough reason to oppose it.”
*A version of this article appears in print in the 14 February, 2019 edition of Al-Ahram Weekly under the headline: Senate passes anti-BDS bill