A bill that would bar U.S. companies from participating in anti-Israel boycotts has been revised to address First Amendment concerns, according to Sen. Ben Cardin (D-Md.), who introduced the bill last year with Sen. Rob Portman (R-Ohio).
The legislation is aimed at curbing the boycott, divestment and sanctions movement by prohibiting U.S. companies from “comply[ing] with, further[ing] or support[ing]” attempts by foreign countries or “international governmental organizations” to boycott Israel. It is an amendment to a 1970s law that forbade companies from complying with boycotts instigated by foreign governments in response to the Arab League’s threat to blacklist companies that did business with Israel.
The updated version does away with jail time as the punishment mechanism in favor of financial penalties. It also affirms the right of individual U.S. citizens to support boycotts.
“We have welcomed the public discussions that have been essential in focusing this bipartisan legislation in such a way that definitively upholds the rights of individual Americans while clarifying decades-old legislation,” Cardin said in a statement.
The Senate bill has 54 co-sponsors. The House version has 278. Sen. Kirsten Gillibrand (D-N.Y.) withdrew her support after the American Civil Liberties Union objected to the legislation last July because it penalizes political speech. The group reiterated its opposition last week.
“The point of this [original law] was to protect American companies,” said Ben Wizner, director of ACLU speech privacy and technology project. “By contrast, the point of this bill is to tell them what political choices they should make.”
J Street, a liberal pro-Israel group, is also still opposed to the revised version and sent an outline of its concerns to members of Congress this week. Its chief criticism is that the legislation blurs the line between Israel and its settlements, in contradiction of U.S. policy.
“The revised version of the bill would still contradict the carefully maintained distinction in U.S. law and policy between how the United States treats the State of Israel versus its settlements in the Palestinian territories,” the J Street statement reads. “It would still extend U.S. legal and diplomatic protection currently limited to the State of Israel to the very settlements the U.S. has opposed on a bipartisan basis for more than 50 years.”
Logan Bayroff, J Street’s director of communications, said his group, which opposes BDS, thinks Cardin’s approach of trying to legislate against it is “strategically flawed.” It turns the movement into victims and doesn’t work, he added, pointing to a recent federal court injunction against an anti-BDS law in Arizona.
The pro-Israel group AIPAC has not made a statement about the revised bill. On its website is a memo in support of the bill released last summer after the bill was introduced.
The AIPAC memo lays out eight “contentions” against the bill — including First Amendment concerns and how those in violation would be punished — and argues against them.
“Arguments that the legislation infringes upon First Amendment rights are incorrect,” the memo reads. “Nothing in the bill restricts constitutionally protected free speech. Companies and individuals would remain entirely free to criticize Israel or boycott it on their own volition.”
The bill, it added, only “expands existing U.S. law” to cover anti-Israel boycotts instigated by international governmental organizations.
Adding “international governmental organizations” is what creates the issue, according to Wizner.
“It looks like a small change, but it’s changing the whole purpose of the law,” he said, because while foreign governments have the power to enforce edicts like a boycott, an international governmental organization — like the United Nations Human Rights Council, which is targeted by name in the bill — can only make recommendations.
Ron Halber, executive director of the Jewish Community Relations Council of Greater Washington, said in July that the bill meets “constitutional muster” and is in Israel’s best interest.