A Week Into New U.S. Congress, Tense Debate Erupts Over anti-BDS Bills

Debate centers on two bills against boycotts of Israel and its settlements, with some claiming that 'a significant number of Democrats now support BDS and leaders want to avoid a floor vote that reveals that'

Amir Tibon
Amir Tibon
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Rep. Ilhan Omar (D-MN) (C) joins her fellow House Democratic women for a portrait in front of the U.S. Capitol in Washington, D.C., January 04, 2019.
Rep. Ilhan Omar (D-MN) (C) joins her fellow House Democratic women for a portrait in front of the U.S. Capitol in Washington, D.C., January 04, 2019.Credit: AFP
Amir Tibon
Amir Tibon

WASHINGTON – Less than a week after the new U.S. Congress began its work, a tense debate has erupted on Capitol Hill over legislation against political boycotts of Israel and of Israeli settlements in the occupied West Bank.

A number of Democratic lawmakers have come out against the proposed legislation, warning that it will harm free speech. Republicans are now trying to use the Democrats’ opposition to the legislation in order to accuse them of supporting the boycott, divestment and sanctions, or BDS, movement.

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The fight over the anti-boycott legislation is a continuation of a similar struggle that started while the previous Congress was in session. Sources on both sides of the aisle were surprised, however, at how quickly the issue returned to the headlines, just days after the current Congress was sworn in.

At the heart of the debate are two separate bills against boycotts of Israel and its West Bank settlements.

One bill, which was presented last week as part of a package of bills on U.S. policy in the Middle East, is focused on supporting state-level legislation that mandates state contractors to sign a pledge stating they don’t participate in boycotts of Israel or the settlements. More than half of U.S. states have passed such legislation over the past decade.

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In the past year, laws of this kind have been challenged in courts. State contractors have sued states over these laws, arguing that the demand to sign such pledges is unconstitutional and harms their First Amendment right to free speech. In two cases, federal courts in Kansas and Arizona ordered to freeze the implementation of the laws because of constitutional concerns. New lawsuits on the same issue have recently been filed in Texas and Arkansas.

Now, Republicans and a number of Democrats in the Senate want to pass a bill that would express support, on the federal level, to these controversial state laws. The bill they are pushing was presented last week by Republican Senator Marco Rubio of Florida. It has the strong backing of AIPAC.

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In addition, the new Congress is expected to take on a second controversial law dedicated to boycotts of Israel and the settlements. It is titled “The Israel Anti-Boycott Act” and civil rights groups, including the American Civil Liberties Union, have warned that it will lead to heavy penalties on individual American citizens for expressing support for boycotts of Israel and the settlements.

AIPAC and the bill’s supporters on both sides of the aisle have rejected the ACLU’s criticism of the bill. They claim it will only influence corporations that will join an internationally-led boycott of Israel or the settlements, and won’t harm the ability of American citizens to choose to boycott Israel or the settlements out of ideological reasons.

The supporters of this bill, which is considered by opponents of “anti-BDS” legislation as the more problematic and harmful of the two, tried to pass it in the very last days of the previous Congress’ session, by adding it into a broader budgetary piece of legislation. However, strong opposition from prominent lawmakers such as Senators Bernie Sanders and Dianne Feinstein postponed that effort.

Over the weekend, Sanders came out against the bill proposed by Rubio. He criticized not only the contents of the legislation, but also the timing of its presentation, in the middle of an ongoing government shutdown. “It’s absurd that the first bill during the shutdown is legislation which punishes Americans who exercise their constitutional right to engage in political activity,” Sanders wrote. “Democrats must block consideration of any bills that don’t reopen the government. Let's get our priorities right.”

Rubio in return claimed that the Democratic opposition to his bill isn’t truly because of the shutdown, but rather because “A significant (number) of Senate Democrats now support BDS and (Democratic) leaders want to avoid a floor vote that reveals that.”

It should be noted that as of today, not a single Democrat in the Senate has publicly expressed support for the BDS movement. Sanders and Feinstein, the two Democrats who have expressed the strongest opposition to anti-BDS legislation, clearly wrote in a letter on the subject that they oppose the BDS movement. Two Democratic legislators in the new House of Representatives - Rashida Tlaib (D-MI) and Ilhan Omar (D-MN) - have expressed support for BDS.

Tlaib responded to the introduction of the legislation by writing that legislators who support the bill “forgot what country they represent. This is the U.S. where boycotting is a right and part of our historical fight for freedom and equality. Maybe a refresher on our U.S. Constitution is in order, then get back to opening up our government instead of taking our rights away.”

Rubio in response accused Tlaib of anti-Semitism, writing that “this ‘dual loyalty’ canard is a typical anti-Semitic line.” He added that BDS “isn’t about freedom and equality, it’s about destroying Israel.”

The American Jewish Committee joined the criticism against Tlaib, writing that “It’s outrageous to imply dual loyalty because you disagree with a policy initiative” and that “a new member of Congress has no place saying that four U.S. Senators don’t know which country they represent.”

The ACLU criticized Rubio’s defense of his bill, in which he said that just like American citizens should have a right to boycott Israel, states should have a right to boycott those who boycott Israel. “States don't have the ‘right’ to punish individuals for participating in political boycotts the government doesn't agree with, which this bill encourages them to do,” the ACLU wrote on its Twitter account. “First Amendment rights belong to the people, not the government.”

Lara Friedman of the Foundation for Middle East Peace, which has been tracking anti-BDS legislation in the state-level for years, told Haaretz on Monday that “one of the reasons the supporters of these bills tried to ‘sneak’ them at the end of the previous Congress, was that they knew the debate about it in the new Congress will be more tense.”

Friedman said that for Republicans, “any Democratic opposition to these bills over concerns about freedom of speech will end with a statement bashing Democrats for being supposedly ‘anti-Israel”. She added that “so long as progressives allow the term ‘pro-Israel’ to be defined by Netnayahu and his supporters, there is no win for them on this. Until they take the initiative and take back the definition of what it means to be pro-Israel, this will be a losing argument for them.”

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