New Senate bill would make it easier for states to punish workers who boycott Israel

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The legislation would bolster laws in 35 states that punish those who back the Boycott, Divestment, and Sanctions movement.

Sens. Joe Manchin (D-WV) and Marco Rubio (R-FL) want to make it easier for states to pass laws punishing workers for their support of the Boycott, Divestment, and Sanctions (BDS) movement.

The BDS movement calls for Israel to end its occupation of the West Bank, grant Palestinians citizens full equality under the law, and promote what Palestinians call the right to return, or the idea that Palestinians who were forcibly expelled during Israel’s War of Independence and their descendants should be able to return to Israel.

It began in 2005 as a way to protest Israel while employing similar political and economic tools activists used to end apartheid in South Africa.

Critics argue that the movement is antisemitic and that by choking off economic support to Israel through boycotts, divestments, and sanctions, participants are asserting that Jews do not have the right to their own state.

"The boycott, divestment, and sanctions movement is the single most destructive campaign of economic warfare facing the Jewish state of Israel today," Rubio said in a statement. "Amid a rising tide of anti-Semitism, it's critical that we stand shoulder to shoulder with our closest democratic ally in the Middle East."

The movement's website refutes claims of antisemitism. "Israel is a state, not a person," it reads. "Everyone has the right to criticize the unjust actions of a state."

The bipartisan Manchin-Rubio bill, called the Combating BDS Act, seeks to bolster state laws by eliminating an argument around the legal principle of preemption, which says federal law outranks state law. The Combating BDS Act explicitly states that state anti-BDS laws are "not preempted by any Federal law."

Free speech advocates have criticized the bill, saying it would help state governments police the speech of private citizens.

"To be clear, this is about whether states can treat individuals differently based on the political positions they choose to express," Kate Ruane, Senior Legislative Counsel at the ACLU, told the American Independent Foundation. "This bill is Congress saying, 'Yes, we support states punishing people for expressing their political positions.'"

Manchin and Rubio have introduced the bill several times before, starting in 2017, and it passed the Senate in 2019, though it did not come to a vote in the House.

Ruane says there is a "dangerous" possibility of it passing this time around, bolstering state anti-BDS laws and encouraging other states to pass their own.

"It is my hope that there has been a change in the understanding of what these bills actually do — they burden people’s right to free speech, they burden their ability to engage in constitutionally protected advocacy, and frankly that’s just not what this country is about," Ruane said.

An AP-NORC poll published Wednesday, in the wake of a recent violence in the region, found that more than half of Democrats feel the United States is not supportive enough of Palestinians.

Yet, both Democratic and Republican lawmakers are overwhelmingly opposed to the BDS movement, save for a few progressive outliers.

Republicans have led an effort nationwide to punish supporters of the BDS movement, which legal experts and courts have deemed unconstitutional. Thirty-five states have passed anti-BDS laws which prohibit residents who work for or contract with the state to support boycotts of Israel and often require them to sign a written certification to that effect.

The laws have affected people like Bahia Amawi, a children's speech pathologist who lost her job at a Texas school after refusing to sign an oath that she would not boycott Israel. Amawi later sued Texas Attorney General Ken Paxton and the school district over the matter, but a judge eventually dismissed the case, citing the state's last-second decision to exempt "sole proprietors" like Amawi from the "No Boycott" rule.

"The plaintiffs are all sole proprietors," the judge said at the time. "Because they are no longer affected by the legislation, they lack a personal stake in the outcome of this litigation."

States like Texas, Kansas and Arizona have been forced to narrow similar laws. Courts in Arkansas and Georgia ultimately struck down those states' laws altogether, ruling them a violation of First Amendment rights.

Published with permission of The American Independent Foundation.