Chicagoland Pro-Israel Political Update
Calling balls and strikes for the pro-Israel community since 2006
August 4, 2019
If you remember nothing else, at least remember this:
- The Global Boycott, Divestment, and Sanctions (BDS) Movement is not a protest against Israeli control of the West Bank; its goal is to delegitimize the Jewish state of Israel and it is tinged with anti-Semitism.
- It does not follow that because BDS is bad, all anti-BDS legislation is good. At the state level, anti-BDS legislation accomplishes little other than serving as a lightning rod for First Amendment challenges.
- Many strong friends of Israel oppose BDS and oppose anti-BDS legislation; they are well within the pro-Israel tent.
- Read to the end for fun stuff. I love when you tell me about typos.
Friends,
Israel did not come up at the Democratic debates because Israel is not an issue in the Democratic primaries--that's good. If you want to know where the candidates stand on Israel and Iran, read their answers to the
Council on Foreign Relations questionnaire. If a candidate you are considering has not responded, ask why not.
What's the fuss about anti-BDS legislation? When I was in college, I wrote for a humor magazine called
Rubber Teeth, so-named because it was biting satire that did not hurt. Many anti-BDS bills have tough-sounding names like the Israel Anti-Boycott Act (IABA) and the Combating BDS Act (CBDSA), but they've got rubber teeth and would have little real impact if enacted.
We can't make blanket statements about the constitutionality of anti-BDS legislation because such legislation takes so many different forms, but supporters of anti-BDS legislation agree that prohibiting anyone from supporting BDS or personally boycotting Israel would be unconstitutional, which means that to be constitutional, they legislation has to pull its punches. The question is whether even the milquetoast bills drafted to meet this standard run afoul of the First Amendment and if they don't, whether fighting for legislation with rubber teeth is worth the political cost.
Current federal law prohibiting participation in boycotts organized by foreign governments
seems constitutional, at least according to every court that has weighed in during the past 40 years. The IABA would extend current law to include participation in boycotts organized by foreign organizations such as the EU or the UN and help prevent the collection of data that could be used to make boycotts more effective by identifying companies who do business with Israel. It's designed to counter a potential threat.
Instead, with no hearings and no opportunity to amend, McConnell called the CBDSA for a vote early this year. The bill's proponents claim that it authorizes states to stop doing business with companies that boycott Israel, but roughly half of the states already have such legislation, which proves such authorization is not needed.
The CBDSA does not protect state anti-BDS bills from First Amendment challenges, which is
obvious if you read it. It is designed to protect state laws from
due process and preemption challenges, which is odd because the First Amendment thus far has been the basis for challenging state legislation.
Even the
ACLU could not find a First Amendment objection to the CBDSA; the ACLU opposes it not on its merits, but because--although it admits "the proposal is of questionable impact"--it might send a message of encouragement to the states to pass anti-BDS bills. But even if it is constitutional, is a bill that would make so little difference worth fighting for?
State laws generally either prohibit the state from contracting with companies that boycott Israel (
such as Texas) or prohibit state pension funds from investing in companies that boycott Israel (
such as Illinois). On April 25, a
district court issued a preliminary injunction against the Texas law on free speech grounds. I am not aware of studies showing that state anti-BDS laws have deterred companies from boycotting Israel or achieved anything other than serving as lightning rods for First Amendment challenges.
If I were in Congress, I'd vote for the IABA and CBDSA if I had to vote (I think they are constitutional), but if I were in Congress, I'd urge my party not to bring them up for a vote. I certainly would not sign a discharge petition to force a vote on the CBDSA, nor would I play along with Republican games to
attach anti-BDS legislation to unrelated bills via
motions to recommit.
Many members of Congress who
oppose BDS also oppose anti-BDS bills because of First Amendment concerns about which reasonable minds can disagree. Instead of fighting what many believe is speech with rubber teeth, we should fight speech with speech--which is what the House did by passing H.Res. 246.
As long as a member of Congress is on record opposing BDS, we should not fault that member for voting against BDS legislation they believe is unconstitutional, especially since little would change if it was enacted. We have
good friends who oppose BDS and also oppose anti-BDS legislation.
This is a great wedge issue for Republicans because when they read the Bill of Rights, they skip straight to the Second Amendment (and they misread it). They don't have to choose between border-line First Amendment concerns and popular but ineffectual anti-BDS legislation.
To their credit, Democrats care about both Israel and the First Amendment. If the anti-BDS legislation had real teeth it would be a real choice, but Republicans are manipulating our emotions to play "gotcha" with Democrats. It's all theater.
Democratic Party leadership should not let Republicans play politics with Israel by bringing anti-BDS legislation to the floor, and pro-Israel organizations should stop pushing legislation that is both divisive and meaningless. Why give Republicans a talking point for the sake of legislation that no one has proven is needed?
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The Fine Print
: This newsletter usually runs on Sunday mornings. Unless stated otherwise, my views do not necessarily reflect the views of any candidates or organizations that I support or am associated with. I reserve the right to change my mind as I learn more. Intelligent, well-informed people may disagree with me; read opposing views and decide for yourself. A link to an article doesn't mean that I agree with everything its author has ever said or that I even agree with everything in the article; it means that the article supports or elaborates on the point I was making. I take
pride in accurately reporting the facts on which I base my opinions. Tell me if you spot any inaccuracies, typos, or other mistakes so that I can correct them in the next newsletter (and give you credit if you want it).
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