Article Library / 2016

2016 Annual Assessment

These legislative efforts are largely grassroots in nature, often initiated by pro-Israel legislators seeking to defend Israel as a key U.S. ally and the sole democracy in a restive region, at a time when it is increasingly under attack, especially on campuses. Many of them have noted a connected spike in anti-Semitic acts and sentiments. They sometimes reach out to foster cooperation with the local Jewish and pro-Israel community. Of course, in some cases, it is the pro-Israel community that initiates the contact. These include groups like the Israel Action Network (IAN), The Israel Project (TIP), The American Jewish Committee (AJC), Stand With Us, the Israel Allies Foundation as well as Christian groups such as Christians United for Israel (CUFI) and Proclaiming Justice to the Nations. There are also a number of prominent think-tanks and legal experts ensuring the constitutionality of these efforts. On the local level, legislators often work with JCRC’s (Jewish Community Relations Councils) and Jewish federations. These organizations provide resources, tool-kits and expertise to local activists who generally liaison with state-level legislators. They also provide assistance in coalition building and ascertaining which model would be most appropriate for that state.

In large part, the bills have passed with bi-partisan support and with overwhelming majorities. Some have noted that in states that have yet to pass or failed to pass legislation, it is less due to opposition than to legislative priorities, schedules, or procedures. Some states don’t wish to get involved in matters they see as divisive (Israeli-Palestinian conflict), or in foreign affairs generally. Pro-BDS groups have attempted to claim these delays as their own successes.

The success of these legislative efforts has taken the BDS movement by surprise, and some experts say it has placed it in a confused, defensive, and reactive position.

Constitutional and Legal Questions

Main opposition, thus far, has been relatively minor and uncoordinated, and has come from pro-BDS groups like Jewish Voice for Peace, the Methodist Church in some states, minority groups in certain areas, Palestine Legal, and the ACLU (American Civil Liberties Union).

The main critique of these opponents thus far has been that they limit First Amendment rights. As noted, the pro-Israel community has employed the use of think-tanks and legal experts to ensure the constitutionality of such efforts.
As Northwestern University Law Professor Eugene Kontorovich explains:8

“None of these laws ban or punish criticism of Israel, or stops anyone from boycotting Israel. They apply solely to businesses that contract with or get investment money from state governments. These laws simply say: If you want the state to do business with you, you need to abide by the state’s policies of sound and fair business practices, including anti-discrimination rules. These laws are not about speech or viewpoints. They are about unfair and discriminatory business decisions. And whether one agrees or not with such laws as a policy matter, there is no question they do not pose a First Amendment problem.”

Kontorovich further points to a “well-established Supreme Court precedent” saying that, “…states can choose not to do business with companies they regard as … discriminatory.”

While a business or organization is free to  criticize Israel and even engage in boycott activities, the state is similarly free to disassociate itself from them.

Of the pro-Israel organizations, all of whom oppose BDS, only the Anti-Defamation League (ADL) has refrained from supporting these legislative efforts,9 noting they may infringe on First Amendment rights.

Implications and Dilemmas

On the symbolic level, these Anti-BDS efforts send a clear message that the states, with broad bi-partisan backing, either support Israel or are, in principle, against discriminatory action and language.

On the practical level, these efforts are accomplishing two main things. First, they keep anti-Israel activists busy. A key element of the BDS movement’s strategy has been to continuously press new anti-Israel initiatives. This places Israel supporters on the defensive, having to explain why Israel is not committing genocide or apartheid or ethnic cleansing, or any one of a number of other loaded accusations.

Moreover, these initiatives provide an out for companies that have been pressured into divesting from Israel having never wished to do so. Moreover, These laws, in at least one instance, even snatched away a false propaganda victory from the BDS movement. For example the BDS movement had claimed it caused the British security firm G4S to pull out of Israel after a long and arduous harassment campaign. But having to answer to the state of Illinois lest it lose state contracts, G4S eventually clarified that not only was it not pulling out of Israel but it intends to remain there for the foreseeable future. 10

There are some ongoing debates as to the most effective model. One relates to whether legislative language should be explicitly anti-BDS and pro-Israel or if general anti-discrimination legislation is preferable. Israel-specific legislation provides important public support for Israel at a time when it is under attack on campuses and progressive groups and helps shore up public opinion that a bi-partisan majority supports Israel. However, this runs the risk of further encouraging the image among minority and progressive groups that Israel is indeed a key issue of intersectionality, and that, by extension, Jews are a privileged group.  This is especially true in states with large minority and progressive communities, and where support for Israel might be lower. This also runs the risk of increasing public awareness of the BDS movement, something critical to its growth strategy.

Other issues are becoming clearer however. Binding legislation seems more preferable to non-binding resolutions. Within this category, states that include pension fund divestment and prohibiting state contracts are preferable. It is important to note, however, that some states’ pension funds are complex to the point legislators would prefer not to touch them. In such states, it is best to defer to local legal and financial experts regarding this issue.