NEW YORK – Efforts to combat the boycott, divestment and sanctions movement are rapidly shifting from college campuses to statehouses, where a growing number of legislatures is considering laws to ban any company that boycotts Israel from winning government contracts or investments.
Even New York State Governor Andrew Cuomo is planning to order all New York State agencies to stop doing all business with any company or agency aligned with the BDS movement.
At least 20 states so far, and two local governments — one a Florida town and the other a New York county — have taken up the issue and have passed laws or are considering doing so.
“It has picked up in pace,” ADL CEO Jonathan Greenblatt said in an interview.
It is a new front in the war against BDS, which has been playing out everywhere from the United Nations, where last week Israeli Ambassador Danny Danon held a conference devoted to the issue, to the college campuses where students are being trained by Zionist organizations to counter anti-Israel campaigns by Students for Justice in Palestine and Jewish Voice for Peace.
Anti-BDS bills take different forms; some mention Israel directly while others do not, instead more broadly referencing boycotts of “American allies.” Some are aimed at state government pension investment funds, and others at any company with which the state or municipality does business.
“States do tens of millions of dollars of business with Israel,” said Peggy Shapiro, the Midwest regional director for StandWithUs, which is heavily involved in advising on proposed legislation. States have “joint ventures, medical research, trade import/export with Israel. Lots of jobs are at stake,” she said.
While efforts to win pro-BDS votes in major Christian denominations, unions and academic associations have generated a great deal of alarm in the pro-Israel community, even those few resolutions which have passed have not made an economic impact on Israel, according to a report in Bloomberg News. It found that “a survey of nine Israeli companies with ties to the settlement and occupation economy showed major non-Israeli holdings have increased or remained largely unchanged over the past three years.”
That has not allayed the worries of those working to counter BDS, however, and their legal strategy continues.
A year ago South Carolina became the first state to pass an anti-BDS law, though its statute does not name Israel specifically. In March this year Illinois became the first state to publish a list of companies with which the government is now prohibited from doing business due to their boycott of Israel. Its Investment Policy Board also bans involvement with, and lists, companies that do business with Iran or Sudan.
Bal Harbour Village, a heavily Jewish suburb north of Miami, last December became the first municipality to pass an anti-BDS law. In May New York’s Nassau County, which also has a large Jewish population, unanimously passed one.
In 2015 a federal trade bill was passed containing an anti-BDS provision.
Such laws are “a good idea because the people who are supporting BDS are trying to pass it off as the moral position, as politically correct. This is a tangible way for states to say ‘we think you are way off base. We’re not prohibiting anyone from boycotting Israel, but we don’t endorse that message and don’t want to support it,'" said Marc Stern, general counsel to the American Jewish Committee.
Avi Posnick, managing director of StandWithUs’s New York chapter, testified before the legislature in Nassau County, where he lives. The county “already requires bidders for county contracts to commit to nondiscrimination, and this is no different,” he said.
While it sometimes appears that BDS advocates make more noise than create actual policy change, “the BDS campaign has infiltrated many economic arenas,” said SWU’s Shapiro.
“Boeing just had its annual meeting in Chicago, and a BDS proposal was presented. They flat turned it down,” Shapiro told Haaretz. “At [Insurance company] TIAA-CREF every time there is a shareholders meeting the issue is brought up. These people keep coming again and again, barraging companies. It’s a massive movement.”
For boycott backers like Jewish Voice for Peace and free speech advocates like the American Civil Liberties Union, these laws threaten freedom of expression. They are two of dozens of such groups that have signed a statement urging New York State legislators to kill an anti-BDS bill now being considered in Albany.
“The principle here is that when lawmakers get into the business of penalizing politically motivated speech they are bound by the first principals of our Constitution. Those uphold and protect robust debate. That’s the core problem raised by this legislation,” Robert Perry, the NYCLU’s legislative director, told Haaretz. Though, he added, “in upholding that right we’re not endorsing a boycott.”
Opponents of anti-boycott legislation even have their own Twitter hashtag: #RightToBoycott.
Constitutional worries “are misguided,” said AJC’s Stern. “Government is not required to subsidize activities with which it disagrees. I doubt the NYCLU would object if the principle was not to invest in a company that didn’t allow transgender people to use whatever bathroom they chose.”
Northwestern University Law Professor Eugene Kontorovich has advised many lawmakers on anti-BDS bills they are drafting.
He distinguished between biased speech and activity. The new legislation “is not about the viewpoints a company holds. This is about discriminatory activity. A company can hang a banner saying ‘long live Palestine, out with Israel,’ and if it’s not actually engaging in discriminatory conduct” by boycotting Israel, then it’s fine, he said. “None of these statutes prohibit any speech by anyone,” said Kontorovich. “But when a state deems certain conduct discriminatory, even if it’s not illegal, they can say they don’t want to contract with it.”
Kontorovich added that the impetus for these laws is coming from elected officials rather than being pushed by Jewish groups.
“It’s really a bottom-up thing. Since the first bill passed, state legislators have been reaching out to whoever they can find to do this,” he told Haaretz. “The state legislators are demanding it faster than the pro-Israel groups can respond.”
A Jewish community relations expert who asked not to be named said there wouldn’t be widespread interest in anti-BDS legislation without advocacy by StandWithUs and similar groups. “The notion that there are state legislators initiating action on a foreign policy issue without some approach by us in the community is implausible,” he said.
Fielding questions from legislators who aren’t knowledgeable about BDS and Israel and call him for answers is taking up increasing amounts of his time, he said, and shouldn’t necessarily be a priority. “It’s not a given that this is more urgent to the local Jewish community than other issues like security and the rise of anti-Semitism.”
The legislation has the backing of the wide swath of pro-Israel organizations, from those on the right to the most mainstream.
The ADL, long an ardent supporter of the right to free speech, is another group advising on potential legislation. “We’re getting questions all the time,” Greenblatt told Haaretz.
The ADL likes anti-BDS resolutions at the state level, though they have no practical consequence the way laws can. “Very often they make a statement without creating the binding strictures a law would. Sometimes it can be very effective,” said Greenblatt. “And a resolution might avoid questions of constitutionality.”
“We’ve been working with federations and Jewish community relations councils to support carefully constructed legislation that is right for each state,” said Ethan Felson, executive director of the Israel Action Network, an arm of the Jewish federations umbrella organization JFNA. “We recognize there’s no one-size-fits-all solution. But we do welcome states recognizing they don’t have to go along with the BDS movement. The move to isolate and use economic leverage against Israel is a pernicious movement.”
The best tool the Jewish community has to combat BDS “is relationships,” Felson said. “But this is an arrow in the quiver. There’s no panacea on this. This is a long slog.”
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