Combating BDS? Not really.

The Combating BDS Act, recently reintroduced by Senators Marco Rubio (R-FL) and Joe Manchin (D-WV), is both inconsequential and dangerous: inconsequential because it is an unnecessary, toothless attempt to counter the Boycott, Divestment, and Sanctions (BDS) movement against Israel, and dangerous because it is an attempt to divide the pro-Israel and free speech communities.

The BDS movement is failing. The Combating BDS Act, as well as BDS legislation at the state level, is legislation in search of a problem — and donations. Anshel Pfeffer explains that BDS “is the most failed, overhyped and exaggerated campaign in the first two decades of the 21st century…BDS failed on every front, with the minor exception of bullying a handful of singers and academics not to take part in concerts or conferences in Israel…the 15 years of the BDS campaign have seen an unprecedented surge in Israeli trade and broadening of its foreign relations.” Yes, there is noise on some college campuses, but non-binding student government resolutions don’t hurt Israel’s economy (if there was ever a place to fight speech with speech, it’s college campuses).

The Combating BDS Act sounds tough, but would have little impact if enacted. A more accurate name for the Combating BDS Act would be the “State Anti-BDS Laws Are Not Preempted By Federal Law But Are Still Subject To First Amendment Challenges Act,” but a name like that would be a lot harder to fundraise off.

The Combating BDS Act’s proponents claim that it authorizes states to stop doing business with companies that boycott Israel, but more than half of the states already have such legislation, which proves such authorization is not needed. The bill does not require states to adopt anti-BDS legislation, and the “authorization” it provides is to qualify for the bill’s unnecessary protections; states don’t need “authorization” to enact the anti-BDS laws they have already enacted.

Expect many of the arguments supporting the Combating BDS Act that were debunked in 2019 to surface again if this legislation gathers steam. Sen. Chris Van Hollen’s (D-MD) statement in opposition to the Combating BDS Act from 2019 remains relevant today, including his response to those who say that state anti-BDS laws are simply laws to boycott the boycotters: “A cute slogan but, again, a stunning ignorance of the First Amendment. Yes, any of us, as individuals, can always decide to boycott those whose boycotts we disagree with. Each of us is free to boycott those businesses who choose to boycott Israeli settlements in the West Bank. But that is not what this bill does — this bill calls upon states to use the power of the state, the power of the government to punish peaceful political actions we don’t like. Again, that is patently unconstitutional.”

The Combating BDS Act does not protect state anti-BDS bills from First Amendment challenges. Instead, it is designed to protect state laws from due process and preemption challenges, which is odd because the First Amendment has thus far been the basis for challenging state legislation, and no state anti-BDS law that has been challenged has ultimately survived court scrutiny. Had the Combating BDS Act been in place, the results of those court challenges would have been no different.

David Schraub wrote that the Combating BDS Act “doesn’t itself impose any penalty or restriction on persons engaging in BDS. All it says is that if a state passes a law limiting its own investment or contracting to entities that disavow BDS, such a law wouldn’t be deemed to conflict with any federal statute…[the] bill still doesn’t shield the state from having to defend its enactment against a First Amendment challenge. The state laws which Rubio’s bill would declare non-preempted either are constitutional or they’re not, but that question is utterly non-germane to Rubio’s bill.”

The ACLU could not find a First Amendment objection to the Combating BDS Act when it was last introduced because the Combating BDS Act does not protect state anti-BDS laws from First Amendment challenges. The ACLU opposed it because–although “the proposal is of questionable impact” — it might send a message of encouragement to the states to pass anti-BDS bills. In other words, there is no direct First Amendment issue because the bill is so inconsequential. A member of Congress might vote for it to send a message against BDS or might vote against to send a message in support of free speech (since much of the legislation at the state level that it claims to support violates free speech). And that’s the real point of this bill–to needlessly divide our community.

State laws generally either prohibit the state from contracting with companies that boycott Israel (such as Texas) or prohibit state pension funds from investing in companies that boycott Israel (such as Illinois). I am not aware of studies showing that state anti-BDS laws have deterred companies from boycotting Israel or achieved anything other than serving as lightning rods for First Amendment challenges, nor have I seen any studies comparing BDS activities in states that have these laws with BDS activities in states that do not. 

BDS legislation is a great wedge issue for Republicans because when they read the Bill of Rights, they skip straight to the Second Amendment (and they misread it). They don’t have to choose between First Amendment concerns and popular but ineffectual anti-BDS legislation because they don’t care. We should not take the bait. If this legislation comes up for a vote, we should recognize it for the triviality that it is and not get worked up about how members of Congress vote on a bill that doesn’t matter. 

To their credit, Democrats care about both Israel and the First Amendment. If anti-BDS legislation had real teeth it would be a real choice, but Republicans are manipulating our emotions to play “gotcha” with Democrats. It’s all theater.

The Democratic Party’s 2020 platform states that it opposes “any effort to unfairly single out and delegitimize Israel, including at the United Nations or through the Boycott, Divestment, and Sanctions Movement.”

President Joe Biden, the leader of the Democratic Party, stated that his administration will “firmly reject the BDS movement — which singles out Israel and too often veers into anti-Semitism — and fight other efforts to delegitimize Israel on the global stage.”

In 2019, with support from over 90% of House Democrats, the House passed H. Res. 246. This resolution explained opposition to BDS in detail and reiterated Congress’s “unwavering commitment to the security of Israel as a Jewish and democratic state” as well as the fact that “the United States Constitution protects the rights of United States citizens to articulate political views, including with respect to the policies of the United States or foreign governments.” As strongly as the resolution opposes BDS, it does not call the BDS movement itself antisemitic, although it does call out troubling positions held by some BDS supporters.

Many members of Congress who oppose BDS also oppose anti-BDS bills because of First Amendment concerns. Instead of fighting what many believe is speech with legislation that could run afoul of the Constitution, we should fight speech with speech–which is what the House did by passing H.Res. 246.

Democratic Party leadership should not let Republicans play politics with Israel by bringing anti-BDS legislation to the floor, and pro-Israel organizations should stop pushing legislation that is both divisive and ineffectual. Why give Republicans a talking point for the sake of legislation that no one has proven is needed?

A separate concern about the Combating BDS Act is that it covers state anti-BDS laws that apply to “Israeli-controlled territories.” The argument for including the territories is that the economies of the West Bank and Israel are inextricably linked and because many major settlement blocs will become part of Israel under a two-state solution — why boycott the settlements that are not obstacles to peace? The settlements that are obstacles are relatively insignificant economically. Moreover, the Combating BDS Act explicitly states that nothing in it alters U.S. policy on final status issues, including borders, but that provision, like the provision stating that nothing infringes on the First Amendment, does not take into account the message this legislation sends.

The argument against including “Israeli-controlled territories” is that it conflates Israel with the West Bank, which Israel has not annexed. Maintaining a firm distinction is important not only for a two-state solution, but to advocate for Israel: What is going on in the West Bank might be at least understandable under an occupation, but would be indefensible within Israel. This legislation blurs an important ideological distinction between boycotting settlements and boycotting Israel.

The Combating BDS Act does not combat BDS. It’s another attempt by Republicans to play games with Israel, and the entire pro-Israel community–not only Democrats — should refuse to play.

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