Why Democratic Candidates Voted No on the Anti-BDS Bill

AIPAC was relieved by the substantive Democratic backing in the Senate for a controversial pro-Israel bill initiated by Republicans.        

The Strengthening America's Security in the Middle East Act (S.1), which the American Israel Public Affairs Committee said "contains critical pro-Israel provisions," passed in a 77-23 vote, earning yeas from every Republican but one, Rand Paul of Kentucky.

"These provisions - contained in one of the first major bipartisan bills adopted by the Senate this year - pledge security assistance to Israel and clarify that state and local governments have the right to counter boycotts of Israel," AIPAC explained.

Not only that, the bipartisan numbers were good: Of 47 senators in the Democratic caucus, 25 voted for the measure to 22 against. A majority of the minority!

The exceptions, however, were notable: Of the seven Senate Democrats who have declared for the presidency or seem poised to, six voted no. Only Amy Klobuchar of Minnesota voted yes.

I asked all seven for explanations; five got back to me. Klobuchar's staff said she was caught up in hearings, and the office of   Sen. Kirsten Gillibrand, D-N.Y., did not respond. The five no voters based their opposition to what has been called an "anti-BDS bill" on free speech concerns about its anti-boycott element, which would provide federal protections for states penalizing boycotters.

Among those who replied, some emphasized their support for the other components of the bill, including $38 billion in defense assistance for Israel, as well as sanctions targeting Syria's Assad regime and the reinforcement of the alliance with Jordan.

Cory Booker of New Jersey: "I have a strong and lengthy record of opposing efforts to boycott Israel, as evidenced by my co-sponsorship of S. 720, the Israel Anti-Boycott Act. However, this specific piece of legislation contains provisions that raise serious First Amendment concerns, and that's why I voted against it. I drafted an amendment to help address these widely held concerns, but there was no amendment process offered to allow for this bill to be improved. There are ways to combat BDS without compromising free speech, and this bill as it currently stands plainly misses the mark."

Sherrod Brown of Ohio: "I strongly support additional security cooperation with Israel and Jordan, and holding the Assad regime accountable. However, recent court cases in Kansas and Arizona have raised First Amendment concerns with state laws, therefore, I believe we need to pause on enacting federal legislation while the issue is still pending in court."  

Kamala Harris of California: "Senator Harris strongly supports security assistance to strengthen Israel's ability to defend itself. She has traveled to Israel where she saw the importance of U.S.-Israeli security cooperation firsthand. She opposed S.1 out of concern that it could limit Americans' First Amendment rights."

Bernie Sanders of Vermont: "While I do not support the BDS movement, we must defend every American's constitutional right to engage in political activity. It is clear to me that this bill would violate Americans' First Amendment rights."

Elizabeth Warren of Massachusetts: "I oppose the boycott. But I think penalizing free speech activity violates our Constitution, so I oppose this bill."

So why were the presidential contenders more likely to vote against the kind of bill that pro-Israel types - and a majority of their party colleagues - usually see as a slam dunk? The Republicans want to paint them as soft on the movement that targets Israel for Boycott, Divestment and Sanctions (BDS), although all six oppose it - as a few said so directly .

Here are some other theories.

·  Fundraising for statewide office vs. fundraising for nationwide office: Presidential campaigns, particularly among Democrats, rely increasingly on small donations from individuals (remember Sanders boasting about his $27 average donation in the 2016 campaign?). An individual motivated to click on "donate" is likelier to be a partisan and less sympathetic to a candidate who signed on to a bill initiated by the opposite party. Notably, grassroots Democratic groups, including the hugely influential MoveOn, oppose the anti-BDS bills. Senate campaigns remain more susceptible to issue-driven donors and political action committees that favor lawmakers who cross partisan lines in order to turn favored bills into law.

·  The ACLU: The American Civil Liberties Union is an influential voice among Democrats, and it has made killing the anti-BDS bills a top priority, which helps embed the message among activists and donors watching the presidential campaign. Gillibrand, notably, did a 180 after ACLU representations. The group remains formally nonpartisan, however, and will not establish affiliated political action committees or endorse candidates, which diminishes its influence in Senate races.

·  The vision thing: Presidential candidates are under greater pressure to come up with a coherent overall vision, and their opponents will eagerly seek inconsistencies. Democratic candidates will be all about speech freedoms in the face of a president who has unrelentingly attacked the media, and the appearance of penalizing boycotts will not be a good look. It's true that consistency counts in Senate races as well, but within a narrower spectrum. Consider two of the Democrats who voted yea, Joe Manchin of West Virginia and Gary Peters of Michigan. Both are in states where campaigns have focused mostly on job creation. A free speech inconsistency won't resonate as much.

 

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In this WSJ Eugene Kontorovich op-ed the ACLU's inconsistency, if not its hypocrisy (and anti-Semitism) is made clear. A summary of the main points follows the url:

 

  For the ACLU, Antipathy to Israel Trumps Anti-discrimination                                                       

·  The American Civil Liberties Union, which for decades defended the vulnerable against public discrimination, has begun an assault on several anti-discrimination laws in order to bring boycotts of Israel into the political mainstream.

·  The ACLU has long argued that although private parties have the right to refuse to do business with people for ideological reasons, the government need not fund such conduct. "Taxpayer dollars must not fund discrimination" carried out by private parties, the ACLU has stated. It has successfully pushed measures banning the federal government from contracting with companies that engage in certain boycotts.

·  The anti-boycott laws the ACLU has defended are meant to protect gays and lesbians. Yet it inexplicably ignores that the logic of those anti-boycott laws applies equally to Israel.

·  The ACLU may think that refusing to do business with people because of their sexuality is immoral while refusing to do business with people connected with Israel is a blow for justice. But First Amendment protections are the same regardless of what one thinks of the underlying conduct.

·  The ACLU's enthusiasm for Israel boycotts has led it to take legal positions that threaten to undermine the anti-discrimination norms it has worked for decades to achieve. Now it is prepared to risk legal protections for sexual minorities for the sake of creating a constitutional right to boycott Jews.