In June 2015, then-Governor Nikki Haley of South Carolina struck the first major blow against the BDS movement when she signed legislation barring the state from entering into contracts with companies that boycott the Jewish state. The bipartisan vote of the South Carolina legislature sparked a wave that led to more than half the states in the country taking action by adopting variations of anti-BDS legislation or executive orders with strong support on both sides of the aisle.
Now that the conversation has risen to the federal level and a bipartisan supermajority of the Senate passed a package of bills, including the Combating BDS Act, moving it one step forward towards aligning it with the action taken by the states, we urge the House of Representatives to move forward in passing this legislation as well.
It is clear to us, along with thousands of state legislators and 26 governors, that the BDS movement has anti-Semitic foundations and is unquestionably anti-Israel. And there is no question that state governments have the right to decide how their taxpayer dollars are spent.
Congress members, however, are being targeted with misrepresentations that the Israel Anti-Boycott Act and the Combating BDS Act would curtail free speech and be struck down by the courts as unconstitutional. This is wrong.
Should these bills become law, adherents to the BDS movement can safely continue to boycott Israel and exercise their right to free speech. The BDS movement is not, would not, should not and cannot be outlawed. Similarly, businesses that engage in BDS can continue to do so, but they should not be afforded unfettered access to public investments or public contracts.
More importantly, anti-BDS legislation has been tested and ruled lawful in federal court. Specifically, Arkansas’s anti-BDS provision was upheld in a challenge earlier this year. The judge, who was confirmed unanimously by the Senate in 2008, acknowledged that though he initially anticipated he would rule against the state, the law did not require it.
“I have a duty to follow the law,” U.S. District Judge Brian Miller wrote in his dismissal of the case, in which he states that the law is constitutional because it clearly focuses on commercial conduct, and not on issues of free speech. He ruled that since engaging in a boycott of Israel “is neither speech nor inherently expressive conduct, it is not protected by the First Amendment.”
As Americans, let alone leaders of religiously oriented organizations, we share an exceptional respect for our Constitution and sympathize with those who, in good faith, would wish to examine the constitutionality of state laws. The unambiguous ruling in a federal court that anti-BDS legislation is lawful assuages those concerns and should move members of Congress to advance these bills as is the will of their constituents.
After all, Americans are clear on where they stand. The latest relevant Gallup poll shows that Israel enjoys overwhelming support, and the United States has a long history of opposing discriminatory policies based on national origin.
In fact, the Israel Anti-Boycott Act expands upon a federal law that has been on the books since the Carter Administration. The 1979 Export Administration Act, “discourage[s], and in some circumstances, prohibit[s] U.S. companies from furthering or supporting the boycott of Israel sponsored by the Arab League, and certain other countries … .” The anti-BDS measures our organizations support merely expand these same nondiscrimination policies to other international governmental organizations discriminating against the Jewish state.
Further, we support the right of the states to continue to create and put forward additional anti-BDS legislation. The Combating BDS Act ensures that the people have that power.
These principles have been exercised many times before without hand-wringing debates on constitutionality manufactured by anti-Israel activists. The National Conference of State Legislatures maintains a helpful list of all state actions taken between 2005 and 2008 that address how through economic means, governments would prevent the furtherance of the genocide then underway in Sudan and address concerns about investments in countries that sponsor terrorism.
There was no uproar then and there should be none now.
Congress need only represent the American people and the sense of their states that have overwhelmingly supported such measures. Our organizations care deeply about freedom of speech; these bills do not restrict our constitutional rights.
The time has come for Congress to follow the lead of the states by passing anti-BDS measures. The Constitution permits it. And, just as importantly, the people demand it.
William Daroff is senior vice president for public policy and director of the Washington office of the Jewish Federations of North America. Sandra Parker is the chairwoman of the Christians United for Israel Action Fund.