Breaking down the Combating BDS Act of 2019 and challenges to state Anti-BDS laws

Sen. Marco Rubio. (photo: AFP)
In the absence of further movement in Congress, the next action on state anti-BDS laws will be in the circuit courts.

By Nathaniel Sobel | Lawfare | Mar 19, 2019

The Court agrees that the commercial actions (or non-actions) of one person . . . to show support for a political position, may not be deserving of First Amendment protections . . . . However, when a statute requires a company, in exchange for a government contract, to promise to refrain from engaging in certain actions that are taken in response to larger calls to action that the state opposes . . . such a regulation squarely raises First Amendment concerns.
— US District Judge Diane J. Humetewa, US District Court of Arizona

On Feb 5, the Senate passed a package of Middle East policy bills, including the Combating BDS Act of 2019. The act, which would affect laws on the books in 26 states that prevent state and local governments from doing business with entities that boycott Israel, has reignited debate over whether lawmakers’ efforts to stymie the boycott, divestment and sanctions (BDS) movement against Israel violate the First Amendment. This post examines the bill passed by the Senate and tracks ongoing litigation against state anti-BDS laws in federal courts.

On the first day of the 116th Congress, Sens. Marco Rubio, R-Fla., James Risch, R-Idaho, Cory Gardner, R-Colo., and Mitch McConnell, R-Ky., introduced S.1, the Strengthening America’s Security in the Middle East Act, a package of four Middle East policy bills that died in the last Congress. Three of the act’s four sections were relatively uncontroversial: One codified a 2016 agreement guaranteeing Israel $38 billion in security assistance over 10 years, another reauthorized defense cooperation with Jordan through 2020, and the third added sanctions on the Syrian regime and those that do business with it.

The fourth section, entitled the Combating BDS Act, was more controversial. According to a press release from Sen. Rubio, it would “empower state and local governments in the United States to counter the anti-Israel boycott, divestment and sanctions movement’s discriminatory economic warfare against the Jewish state.” Senate foreign relations committee Chairman Risch added that the bill “is vital to . . . end discrimination against Israel.”

After the package was introduced, critics voiced strong concern. The ACLU and Sens. Bernie Sanders, I-Vt., and Rand Paul, R-Ky., criticized the bill on the grounds that economic boycotts are protected by the First Amendment. Sen. Rubio and newly elected Rep. Rashida Tlaib, D-Mich., also traded barbs on Twitter over the constitutionality of laws restricting boycotts of Israel.

The Combating BDS Act is a top legislative priority of the American Israel Public Affairs Committee (AIPAC), which published a memo asserting that “[t]he legislation in no way impedes the right of any American to boycott or criticize Israel.” Others have disagreed with this reading of the legislation. Lara Friedman of the Foundation for Middle East Peace, who tracks Israel-related legislation in Congress, offered a “fact-check” of the AIPAC memo, writing: “The purpose of the [Combating BDS Act] is to give political and legal cover to, and encouragement for, state laws that violate the First Amendment of the Constitution.”

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