The Israel Anti-Boycott Act is a proposed bill 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.270, died in the previous, 115th session of Congress, it is a recurrent issue in American foreign policy and will continue to be taken up in the legislature. Israel was the United States 18th and 24th largest import and export partner in 2017, respectively. Beyond exports and imports the U.S. FDI was $26.7 billion in 2017. It has 58 cosponsors in the Senate (42 Republicans, 15 Democrats, 1 Independent), and 292 cosponsors in the House (216 Republicans, 76 Democrats). 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).
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 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. 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.
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. 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. In the Senate, it was introduced on March 23, 2017 by Senator Benjamin Cardin, 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.
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.
Florida required the State Board of Administration to create a list of companies that are boycotting Israel, and the Tennessee General Assembly called BDS a movement of "spreading anti-Semitism and advocating the elimination of the Jewish state." Many of the state laws passed with little to no opposition. South Carolina legislation is not only limited to persons or companies boycotting Israel, but any boycott of an open trading party of South Carolina. 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.
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.
BDS, which stands for Boycott, Divestment and Sanctions, is a movement formed around the belief that Israel must abandon its settlements in the West Bank, which are in violation of international law. This movement seeks to protest the settlement program by advocating for various boycotts against Israeli goods. The supporters of BDS claim that their motive is to use their boycotts to put pressure on Israel to support the two state solution that would result in Palestine becoming an independent state. Some critics claim though that the BDS movement is about destroying Israel as a Jewish state and is anti-Semitic.
Israel does not support the BDS movement and has a track record of barring certain organizations and individuals thought to support the BDS movement. In January 2018, the government of Israel released a list of 20 organizations not allowed to enter the country due to their promotion of the BDS movement.
Earlier in 2018, Israel also detained certain individuals who entered Israel and were thought to support the BDS movement. In particular, an American citizen named Lara Alqasem, a 22-year-old U.S. citizen with Palestinian grandparents, flew to Israel with a valid student visa but was barred from entering and ordered to be deported..
While many Palestinian organizations (over 170 to be exact), and civilians and Palestinian diaspora support the BDS movement, the position of the Palestinian Authority is a bit more complicated. The current Palestine Liberation Organization (PLO) Chairman and President of Palestine, Mahmoud Abbas has come out against the BDS movement, stating that while boycotting Israeli institutions gives a moral boost to some Palestinians, that it doesn't significantly harm or hinder the Israeli occupation in Palestine. As a negotiator in peace talks with Israel and the larger Middle East, Abbas has taken a more moderate position, wanting a respite from violence as well as cooperation and diplomacy. His return to diplomacy after succeeding Yasser Arafat (who symbolized Palestinian resistance and their national movement towards independence), ignited some anger among some Palestinians, and is partly why the BDS movement was started in 2005.
The Israel Anti-Boycott Act, along with similar anti-BDS legislation, has created a sharp divide between those that oppose the legislation 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. 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. 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."
Another instance that opponents point to is when the Texas state law, House Bill 89, had been applied to Hurricane Harvey victims who applied for disaster relief funds, which drew a lot of attention and condemnation from both Republicans and Democrats. As for companies that have government contracts and would have to sign the pledge, an Arkansas-based newspaper called the Arkansas Times is currently suing the state of Arkansas, while being represented by the ACLU, on the grounds that their 1st Amendment rights were violated. The Arkansas state law's backer, state Senator Bart Hester, argued that the legislation is necessary for protecting Israel's interests as an ally and was motivated by his Christian faith.
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, ...". 2020 presidential candidate Kirsten Gillibrand also withdrew her co-sponsorship, but remains against the BDS movement.
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. 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. 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. 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. 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. 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. 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. 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.
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.
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.
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. 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.
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." However, organizations like the ACLU disagree and have sought lawsuits on those grounds.
The NGO Anti-Defamation League has taken a different stance. The League, which has historically taken up issues of discrimination, human rights and abuses, with their motto being, "Fighting Hate for Good", is against the BDS movement. They believe that it is a further action taken to delegitimize the State of Israel. They seek to "marginalize and expose the illegitimacy of the BDS movement."