Demystifying BDS

By Steve Sheffey

We need to fight against two Boycott, Divestment, and Sanctions (BDS) campaigns: the BDS movement against Israel and the efforts, in some cases unintentional, to use anti-BDS bills to divide the pro-Israel community and weaken bipartisan support for Israel.

The BDS movement opposes the concept of a democratic, Jewish state of Israel. The BDS movement does not recognize the legitimacy of Zionism, the national liberation movement of the Jewish people. By calling for a so-called “right of return” for Palestinians to pre-1967 Israel, the BDS movement is calling for a one-state solution. Jews have both a right to their own state and a need for their own state.

Millions of Jews and Palestinians live in what now is the West Bank, Gaza, and Israel. Two states for two peoples is the only solution. Neither side has to give up its narrative or its claim to all of the land, but both sides will have to cede land they believe is theirs by right to the other side. It does not make sense to boycott one party to the conflict when peace requires that both sides take risks they are not ready to take.

The ADL’s Jonathan Greenblatt explains that “at its core BDS is an anti-Semitic movement. It is part and parcel of the larger effort to delegitimize the Jewish state.” That doesn’t mean that everyone who supports BDS is anti-Semitic, just as everyone who supports Donald Trump is not a bigot. But just as everyone who supports Donald Trump is supporting a bigot, everyone who supports BDS is supporting an anti-Semitic, anti-Israel movement, whether they know it or acknowledge it.

The Democratic Party platform could not be clearer: “we will always support Israel’s right to defend itself, including by retaining its qualitative military edge, and oppose any effort to delegitimize Israel, including at the United Nations or through the Boycott, Divestment, and Sanctions Movement. We will continue to work toward a two-state solution of the Israeli-Palestinian conflict negotiated directly by the parties that guarantees Israel’s future as a secure and democratic Jewish state with recognized borders and provides the Palestinians with independence, sovereignty, and dignity.” This is what it means to be pro-Israel.

We must be smart about how we oppose BDS. The pro-Israel community is sometimes the person with a hammer for whom everything looks like a nail. We are good at passing legislation, but legislation is not always the appropriate tool.

Current federal law prohibiting participation in boycotts organized by foreign governments has survived court challenges and seems constitutional, at least according to every court that has weighed in during the past 40 years.

My view — shared by Jay Michaelson — is that the Israel Anti-Boycott Act proposed in the last session of Congress would be constitutional. The proposed Combating BDS Act does not ban boycotts or protect state anti-BDS bills from First Amendment challenges, which is obvious if you read it. Even the ACLU could not find a First Amendment objection; the ACLU opposes it not on its merits, but because — even though it admits “the proposal is of questionable impact” — it might send a message of encouragement to the states to pass anti-BDS bills. But even if the Combating BDS Act is constitutional, is a bill that would make so little difference worth fighting for?

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). On April 25, a district court issued a preliminary injunction against the Texas law on free speech grounds.

The Texas decision is worth reading because it shows the strength of First Amendment objections to these types of state laws. The decision also illustrates how bad facts can make these laws hard to defend. When asked what motivated him to introduce the anti-BDS legislation, Rep. Phil King cited his Christian religious heritage. Not the best evidence if you’re fighting a First Amendment challenge.

I am not aware of studies showing that state anti-BDS laws deter companies from boycotting Israel, nor am I aware of any evidence that the Combating BDS Act would provide anything but marginal support for state laws with marginal impact that are lightning rods for First Amendment challenges.

If I were in Congress, I’d support these bills (I think they are constitutional), but if I were in Congress, I’d urge my party not to bring them up for a vote. I certainly would not sign a discharge petition to force a vote on the Combating BDS Act, nor would I play along with Republican games to attach anti-BDS legislation to unrelated bills via motions to recommit.

Many members of Congress who oppose BDS also oppose anti-BDS bills because of First Amendment concerns about which reasonable minds can disagree. We should expect members of Congress to oppose BDS, but opposition to any particular anti-BDS bill should not be held against any member of Congress.

The better approach is H. Res. 246/S. Res. 120. These companion bipartisan resolutions spell out why the BDS movement is “destructive of prospects for progress towards peace and a two-state solution.” There is not even an argument that these resolutions restrict free speech or prejudice the final outcome of negotiations.

These resolutions are supported by AIPAC, J Street, and many other organizations, including the Jewish Democratic Council of America (JDCA).Rep. Brad Schneider (D-IL) was an original sponsor of these resolutions, which now have at least 264 co-sponsors in the House, including at least ten from Illinois, and at least 53 Senate co-sponsors, including Tammy Duckworth and Dick Durbin from Illinois.

The pro-Israel community should work to pass these resolutions and save its political capital for what matters, not anti-BDS bills that are objectionable on other grounds and that will have minimal impact.

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Steve Sheffey is Strategy and Policy Adviser to the Jewish Democratic Council of America (JDCA) and the publisher of the weekly Chicagoland Pro-Israel Political Update. The views expressed here are his own.