In the past several years, 27 states have adopted laws designed to discourage boycotts of Israel, known as anti-BDS laws. These efforts gained more momentum when the US House of Representatives passed a bill against the Boycott, divestment and sanctions movement last Thursday in a show of overwhelming support, with 349 co-sponsors and 16 Democrats and one Republican opposing the measure.
The vote occurred amid a debate on the BDS movement in the United States, as earlier in the month, Rep. Ilhan Omar (D-Minn.) introduced a boycott resolution that would affirm the American "right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution."
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In response to the anti-BDS bill's passing, Omar tweeted "Our [First Amendment] right to free speech allows boycott of inhumane policies," she tweeted. "This bill is unconstitutional."
According to Joseph Sabag, CEO of the Israeli-American Coalition for Action, Omar's rhetoric and pro-BDS bill "retort to dishonesty and misrepresentation, trying to deceive the public by misrepresenting the nature of laws and the status of judicial treatment of these laws."
"In January, a federal judge ruled that anti-BDS laws are entirely constitutional," he explained.
Pro-BDS bills "stand no chance of success," Sabag told JNS.
"Israel is a large consumer of US goods, and jobs depending on exports are significant," he continued. "If states were to pass BDS bills that limited [US -Israel cooperation in the] sciences, pharmaceuticals, water desalinization and avionics, removal of trade would have a devastating impact on the quality of life."
South Carolina State Rep. Alan Clemmons, whose state was one of the first to pass anti-BDS legislation back in 2015, told JNS that the legislation for his state was "common sense."
"BDS is fueled by anti-Semitism and seeks to harm South Carolina's businesses for doing business with Israel," he said. "It was the common sense thing to do, which is why the law was passed unanimously by the legislature."
While the anti-BDS bill in the House and a previous one in the Senate last February has brought the legislation to the national debate, the passage of anti-BDS legislation has been a bottom-up effort on the state and local level that has been part of a strategy by the Israel-American Coalition for Action.
Sabag said that these anti-BDS bills have been effective on the state-level and have seen success.
Compared to Congress, he said "states themselves are much more clear-eyed about what their interests are and face far fewer inhibitions in identifying and pursuing an issue that speaks to a compelling state interest."
"State capitals are a far more functional place right now than Washington, DC, and states have compelling economic interests to defend their own state economy," he said.
Both Sabag and Clemmons noted that Omar's resolution related directly to their pro-Israel policymaking approach to promoting anti-BDS resolutions through a bottom-up approach. Promoting resolutions from the state level, they say, is a novel inversion of the pro-Israel lobby and the most effective way to challenge the BDS movement.
Airbnb: The big first-test case
According to Sabag, the new policy approach started in 2007, when then-Speaker of the Florida House of Representatives Marco Rubio passed a bill requiring state retirement of funds to divest themselves of investments in companies doing business in Iran's energy sector. The unintended dynamic that emerged, Sabag posed, was a change in the foreign-policy making model from a top-down approach to a bottom-up approach.
As the past executive director of the Israel Allies Foundation, he recalled that in 2014, he began to "hear concern about BDS from members of Congress who saw it as a mounting threat that had to be taken seriously." Partnering with Clemmons and Professor Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum, Sabag "recycled the Iranian divestment model."
"Before, foreign-policy making started with the president, made its way to Congress, and only then would the states get their say. But beginning with Iranian divestment, states began to go ahead with some expression of policy, and by doing so consistently, it ripened an issue so that Congress has to follow the approach taken by their home states," he explained.
From 2007-2010, noted Sabag, "you saw two-dozen states pass anti-BDS laws before Congress had to go ahead and respond with a federal pre-emption deal as to not look irresponsible. Now, this bottom-up policymaking has become the model by which most pro-Israel and Jewish community concerns are being addressed at this time."
"Airbnb is a great example of why this is such an important development," related Clemmons, referring to Florida and Texas directives for all state contractors to cease doing business with Airbnb in response to its November 2018 decision to delist properties in Judea and Samaria.
"Simply consider where we would be at this moment had 27 states not passed regulatory legislation, given that half the Congress can barely muster the resolve to pass a lukewarm resolution on the matter," he said.
Sabag similarly noted that Airbnb "provided the big first test case of state-based anti-BDS laws, and the outcome was satisfying to the pro-Israel community."
"The regulatory reach of these 27 statewide anti-BDS laws reaches into the trillions of dollars of the American economy," said Sabag, calling the laws the 'iron dome' of Israel's economy.
"It will be a long time before another publicly-traded company caves to pressure by BDS," he said, which is "exactly what we set out to accomplish."
Reprinted with permission from JNS.org.
