Two senators try to sneak anti-free speech, pro-Israel law into bill to avert shutdown

Ben Cardin and Rob Portman want to cram an anti-boycott bill protecting Israel into urgent spending legislation

By Igor Derysh

Managing Editor

Published December 20, 2018 6:00AM (EST)

Rob Portman; Ben Cardin (AP/Getty/Salon)
Rob Portman; Ben Cardin (AP/Getty/Salon)

Two senators are trying to sneak legislation that would impose criminal penalties on American companies and groups that support a boycott of Israel into a spending package that would avert a government shutdown by Friday.

Sen. Ben Cardin, a Maryland Democrat, and Sen. Rob Portman, an Ohio Republican, are pushing a proposal that would create criminal and civil penalties for American entities that back boycotts supporting Palestinian rights, The New York Times reported. The move seeks to weaken the boycott, divestment and sanctions movement, known as BDS, that seeks to economically pressure Israel to give equal rights to Palestinians, similar to the South African anti-apartheid movement.

Cardin and Portman have pushed for the legislation for months and are now trying to attach it to a package of spending bills that Congress must pass to avoid a shutdown.

They said the bill is in response to a 2016 resolution by the United Nations Human Rights Council that sought to create a database with companies doing business in territories occupied by Israel in violation of international law.

While the original proposal called for jail time for violators, a revised proposal would use fines as penalties. The legislation was also amended to “explicitly state that none of the provisions shall infringe upon any First Amendment right.”

But the ACLU says the wording is non-binding and “leaves intact key provisions which would impose civil and criminal penalties on companies, small business owners, nonprofits and even people acting on their behalf who engage in or otherwise support certain political boycotts.”

The ACLU said in a letter to lawmakers that “such assurances ring hollow in light of the bill’s intended purpose, which is to suppress voluntary participation in disfavored political boycotts.”

In a separate statement, Manar Waheed, senior legislative and advocacy counsel at the ACLU, said that the bill creates a “precedent for penalizing First Amendment actions because they’re unpopular or because the government doesn’t agree with them,” adding, “this is a step on a road to the erosion of First Amendment rights in a way that will impact movements and viewpoints for the future.”

Even the Anti-Defamation League, which has lobbied for the legislation, admitted in a leaked internal memo that anti-BDS laws are “ineffective, unworkable, unconstitutional and bad for the Jewish community,” The Forward reported.

Cardin’s fellow Democrats have voiced opposition to the legislation as well. Rep. Betsy McCollum, D-Minn., slammed lawmakers secretly working to “to slip language into a must-pass spending bill that criminalizes politically motivated boycotts against Israel.”

“The Israel Anti-Boycott Act violates our right to free speech,” she tweeted.

A Democratic House aide told The Hill that the anti-BDS law is not likely to be included in the lame-duck legislation. The ACLU noted that the bill may face far more opposition in the next Congress, which will have a Democratic House majority.

“There’s very much a reason that members of Congress, leadership in Congress, is trying to push this through a spending bill without a debate before the new Congress comes in, and that’s because they know they’ll have less support for legislation that violates the First Amendment in this way in the new Congress,” Waheed told The Hill.

But even if this legislation is delayed or fails entirely, most Americans already live in a state where anyone doing business with the state is barred from supporting the BDS movement.

The Intercept reported that 26 states, including New York, California and Texas, have legislation in place barring state contractors from supporting a boycott of Israel, while 13 other states have similar bills pending.

Texas’ recently-passed law led to residents affected by Hurricane Harvey being forced to sign a pro-Israel pledge in order to get disaster relief funds. Earlier this year, Bahia Amawi, a speech pathologist for an Austin school district, lost her job for refusing to sign a pro-Israel oath as part of her new contract.

The oath required her to pledge that she “does not currently boycott Israel,” that she “will not boycott Israel during the term of the contract,” and that she shall refrain from any action “that is intended to penalize, inflict economic harm on, or limit commercial relations with Israel, or with a person or entity doing business in Israeli or in an Israel-controlled territory.”

“In order to obtain contracts in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children, and even to support a boycott of particular U.S. states,” wrote The Intercept’s Glenn Greenwald. “In order to continue to work, Amawi would be perfectly free to engage in any political activism against her own country, participate in an economic boycott of any state or city within the U.S., or work against the policies of any other government in the world — except Israel.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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