Israel Anti-Boycott Act

The Israel Anti-Boycott Act is a proposed anti-BDS law[1] that is designed to permit U.S. states to freely enact laws that would require contractors to sign a pledge saying that they would not boycott any goods from Israel, or their contracts would be terminated. The bill would also amend the Export Administration Act of 1979. Although the Israel Anti-Boycott Act, consisting of House and Senate bills, H.R. 1697 and S.720, died in the previous, 115th session of Congress,[2] it is a recurrent issue in American foreign policy and will continue to be taken up in the legislature. It has 58 cosponsors in the Senate (42 Republicans, 15 Democrats, 1 Independent),[3] and 292 cosponsors in the House (216 Republicans, 76 Democrats).[3] It has been drafted by Senators Ben Cardin (D-Maryland) and Rob Portman (R-Ohio) and introduced to the United States Congress in 2018. Some of its cosponsors include Senator Marco Rubio (R-Florida), Senator Susan Collins (R-Maine), Senator Charles Schumer (D-New York), and Senator Cory Booker (D-New Jersey).[4]

Bill summary

In the House, the bill was introduced on March 23, 2017 by Representative Peter Roskam.

The House bill H.R. 1697 declares that the United States Congress shall go against the United Nations Human Rights Council (UNHCR) Resolution[5] L.39 passed March 24, 2016, that demanded Israel to cease and deconstruct settlement activity in the Occupied Palestinian Territories, as well as urged states to ensure they were not assisting in the expansion of Israeli settlements through economic means, especially in regard to trading practices.[6] The bill further asserts that the United States Congress will work to fully implement the United States-Israel Strategic Partnership Act of 2014 via scientific and technological cooperation in civilian areas.[7]

It also prohibits any U.S. person involved in domestic or foreign commerce from supporting 1) any foreign country's request to impose a boycott against a country that is friendly to the United States and 2) any boycott imposed by or requested on behalf of any international governmental organization against Israel.[7] In addition, H.R. 1697 amends the Export Administration Act of 1979 to state that the United States’ official policy is to strictly oppose any restrictive trade practices or boycotts, or the request of such, against the state of Israel.[7] In the Senate, it was introduced on March 23, 2017 by Senator Benjamin Cardin,[8] and called S.720. Both H.R. 1697 and S.720 were filed on March 23, 2017 and contain exactly the same language and amendments.[8]

Background

Before this bill was introduced and drafted in the United States Congress, twenty-six states had passed similar legislation or had executive orders issued by their governor to restrict boycotting of Israeli goods by state contractors. The states are: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and Wisconsin.

The American Civil Liberties Union (ACLU) has filed lawsuits on multiple of the states laws. A lawsuit was filed against the anti-boycott legislation in Kansas, but after an amendment to the policy the ACLU dropped the lawsuit.[9]

This legislation has received bipartisan support, usually from those that align themselves alongside pro-Israeli policy and AIPAC. However, many of these laws are currently being challenged in court cases, mainly from organizations such as ACLU and Council on American–Islamic Relations (CAIR) on the grounds that they violate the 1st Amendment right to freedom of speech.[10]

Impact and controversy

The Israel Anti-Boycott Act has created a sharp divide between those that oppose it and those that support it. Those that oppose it argue that it violates the 1st Amendment when it comes to peaceful protest, while those that support it say that the United States is obligated to both protect the financial interests of its ally, Israel, and to penalize those that seek to harm it while benefiting from US government contracts.

The opponents of the Israel Anti-Boycott Act have pointed to several situations across the United States where they see anti-boycott legislation threatening free speech rights. One such example that opponents of the Israel Anti-Boycott Act point out to support their argument is the case of Bahia Amawi, a former speech pathologist and therapist for children in the Pflugerville Independent School District in Texas, until she was let go due to refusing to sign a pledge in her contract saying that she would not boycott Israel.[11] Her lawsuit against this state law on the grounds that her 1st Amendment rights were violated was ruled in her favor, with the U.S. District Court Judge Robert L. Pitman saying that her 1st Amendment rights were indeed violated.[12] The ACLU has also filed a lawsuit against Texas on similar grounds, representing four other people who have been affected by the law.

The ACLU recognizes that the U.S. Congress has stated that it has resolved the bill's anti-First Amendment language, but the ACLU still points out that "the bill could result in criminal financial penalties of up to $1 million."[13]

Response

Senator Bernie Sanders (I-Vermont), a 2016 and 2020 presidential candidate, alongside Senator Dianne Feinstein (D-California), have opposed the bill being included in the Appropriations bill in 2018, stating "We believe including this bill would violate the spirit of cooperation and commitment that Senate appropriators have made to oppose controversial riders on appropriations bills, ... While we do not support the Boycott, Divestment and Sanctions (BDS) movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacefully without fear of or actual punishment by the government, ...".[14] 2020 presidential candidate Kirsten Gillibrand also withdrew her co-sponsorship, but remains against the BDS movement.[15]

The United Nations Human Rights Council (UNHRC) has formulated a response dealing with the Israel Anti-Boycott Act to suppress BDS. The United States worked to weaken the Arab League Boycott of Israel using the US Export Administration Act of 1979.[16] This legislation prohibited US businesses from supporting the Arab League Boycott. This legislation's goal was to support the US's ally within the Middle East: Israel. The United States Congress has legislation in the works which would extend the Export Administration Act by adding provisions to non-governmental organizations, such as the United Nations.[17] The UNHRC initiated a new commercial boycott of Israel which would need the United Nations to implement and enforce a blacklist of Israeli and Israeli-linked companies. They have compiled a list of private companies, putting them on a blacklist, because they are direct at Israeli-linked companies which support settlements in the West Bank.[17] The UNHRC has a broad definition of offending companies which means it is likely they will prohibit commerce with any and all Israeli-linked companies.

The United Nations Human Rights Council is focused on the blacklist of companies who do business with Israel. Some major U.S. employers, such as Caterpillar and Coca-Cola, would be affected.[17] These companies on the list face harassment with boycotts and negative publicity. Legislation designed to protect U.S. companies from being targeted by boycotting pressure is no longer in place because the House Foreign Affairs Committee has removed it.[17] The Israel Anti-Boycott Act has been amended and sent to the House Foreign Affairs Committee eliminating existing definition which provided anti-boycott coverage for Israel and Israeli-controlled territories.[16] These territories refer to Jerusalem and the Biblical regions of Judea and Samaria (West Bank) – which is the focus of the UNHRC's aim. Eliminating the operating provisions by providing impermanent, allows for revocable protections for the Israeli-controlled territories that the UNHRC specifically seeks to target.[16] Any unraveling has been blamed on the American Israel Public Affairs Committee (AIPAC), who designed a watered-down version of the bill in response to hostile Democratic party demands which have taken place during the legislative process.

Support

Some critics, such as Eugene Kontorovich, argue that this is not a 1st Amendment issue, but that those that wish to boycott Israel, for whatever reason, should not benefit from government contracts and taxpayer money. One example of this would be one of Israel Anti-Boycott Act's sponsors, U.S. Senator Marco Rubio (R-Florida), when he tweeted out "Opposition to our bill isn’t about free speech. Companies are FREE to boycott Israel. But local and state governments should be free to end contracts with companies that do". Some even directly argue that the bill itself, and similar legislation, does not violate the 1st Amendment right of free speech, pointing to the Export Administration Act of 1977, and arguing mainly on the basis that BDS is an international movement, and so challenges to the constitutionality of the Israel Anti-Boycott Act would somehow threaten the constitutionality of the 1977 Export Administration Act.[18]

The American Israel Public Affairs Committee (AIPAC) is a pro-Israel lobby group who favors the measure of this legislation act. However, J Street, a progressive American pro-Israel group, is at odds with AIPAC. J Street supports a two-state peace solution, where they fear this legislation would harm the country by implicitly treating the settlements and Israel the same rather than separate entities.[16]

Combating BDS Act

In 2019, Senator Marco Rubio, who cosponsored the Israel Anti-Boycott Act, introduced the Combating BDS Act, whose original cosponsors include Senator Cory Gardner (R-Colorado), Senator Mitch McConnell (R-Kentucky), and Senator Roy Blunt (R-Missouri). The bill is meant to do exactly what the Israel Anti-Boycott Act was meant to do, and enable states to pass anti-boycott legislation with federal blessing.[19] This bill has received a very similar reception, with supporters and opponents making similar arguments. On February 5, 2019, the Senate passed this bill alongside other Middle East policy bills. As of May 2019 it seems as though the House will not be taking up the bill in the foreseeable future.[20]

AIPAC continues to support the U.S. Anti-Israeli Boycott Act and similar legislation, saying that, "(the legislation) protects the First Amendment rights of those who choose to boycott Israel in their personal capacity."[21] However, organizations like the ACLU disagree and have sought lawsuits on those grounds.

State action

On January 15, 2020, South Dakota became the 28th US state to enact an anti-Israel boycott law by executive order or legislation. The order prohibits state offices from doing business with companies that boycott Israel.[22] Other states that have enacted similar measures include Alabama, California, Georgia, Illinois, Indiana, Iowa, Kentucky, Minnesota, New York, Pennsylvania, South Carolina and Texas.[23]

See also

References
  1. "War by Other Means". FDD. Jan 20, 2020. Retrieved Aug 14, 2020. The 115th Congress considered, but did not pass, two major anti-BDS bills. The Israel Anti-Boycott Act (IABA) sought to extend existing anti-boycott provisions in U.S. law to cover explicitly boycotts initiated by international governmental organizations, such as the United Nations.
  2. "Israel Anti-Boycott Act (2017 - S. 720)". GovTrack.us. Retrieved May 6, 2019.
  3. Cardin, Benjamin L. (23 March 2017). "Cosponsors - S.720 - 115th Congress (2017-2018): Israel Anti-Boycott Act". www.congress.gov.
  4. Cardin, Benjamin L. (23 March 2017). "Cosponsors - S.720 - 115th Congress (2017-2018): Israel Anti-Boycott Act". www.congress.gov.
  5. "Congressional Research Service, "Summary: H.R. 1697 - 115th Congress (2017-2018)"".
  6. "OHCHR | Human Rights Council adopts six resolutions and closes its thirty-first regular session". www.ohchr.org.
  7. Roskam, Peter J. (28 June 2018). "H.R.1697 - 115th Congress (2017-2018): Israel Anti-Boycott Act". www.congress.gov.
  8. Cardin, Benjamin L. (23 March 2017). "S.720 - 115th Congress (2017-2018): Israel Anti-Boycott Act". www.congress.gov.
  9. "Anti-BDS Legislation". www.jewishvirtuallibrary.org.
  10. "Ten things to know about anti-boycott legislation". Palestine Legal.
  11. Rosenberg, Eli (December 17, 2018). "She lost her school job after refusing to sign a pro-Israel pledge. Now, she's filing a lawsuit". The Washington Post. Retrieved May 6, 2019.
  12. Greenwald, Glenn (April 26, 2019). "In Case Brought by School Speech Pathologist, Texas Federal Court Becomes the Third to Strike Down Pro-Israel Oath as Unconstitutional".
  13. "Congress Is Trying to Use the Spending Bill to Criminalize Boycotts of Israel and Other Countries". American Civil Liberties Union.
  14. "Sanders, Feinstein Oppose Inclusion of Israel Anti-Boycott Act in Appropriations Bill". Sen. Bernie Sanders.
  15. "Has Gillibrand's position on Israel changed?". @politifact.
  16. "How the Israel Anti-Boycott Act Threatens First Amendment Rights". American Civil Liberties Union.
  17. Jordan, Chuck (7 September 2018). "Amended Israel Anti-Boycott Act is harmful, not helpful". TheHill.
  18. Kontorovich, Eugene (July 27, 2017). "Opinion | Israel anti-boycott bill does not violate free speech". The Washington Post. Retrieved May 6, 2019.
  19. Rubio, Marco (January 17, 2017). "S.170 - 115th Congress (2017-2018): Combating BDS Act of 2017". www.Congress.gov.
  20. "Breaking Down the Combating BDS Act of 2019 and First Amendment Challenges to State Anti-BDS Laws". Lawfare. 19 March 2019.
  21. "The Israel Anti-Boycott Act (S.720)". www.aipac.org. AIPAC - The American Israel Public Affairs Committee. October 2018. Retrieved May 6, 2019.
  22. South Dakota governor signs executive order prohibiting Israel boycotts
  23. South Dakota governor signs executive order banning boycotts of Israel
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