Left’s sweeping opposition to NGO bill may prove counterproductive

The newest right-wing bid to limit foreign governmental funding for nonprofits is problematic, critics say. Raising broad accusations that it is ‘undemocratic’ may not be the smartest way to challenge it

Haviv Rettig Gur is The Times of Israel's senior analyst.

Ayelet Shaked, March 11, 2013. (Miriam Alster/Flash90)
Ayelet Shaked, March 11, 2013. (Miriam Alster/Flash90)

On Tuesday, MKs Ayelet Shaked (Jewish Home) and Robert Ilatov (Yisrael Beytenu) proposed a bill amending the Nonprofits Law to limit foreign governmental funding to Israeli NGOs that oppose Israel’s Jewish character or Israeli democracy, advocate boycotting Israel or trying its soldiers in international courts, or incite to racism or terrorism.

The response of some on the left was predictable; it may also prove self-defeating.

“The right’s vision is of an Israel that is abhorred, alone and untouchable,” MK Zahava Gal-on (Meretz) told the Haaretz daily. “The bill is meant to harm human rights organizations,” she declared.

Haaretz dubbed the bill “The Left-wing NGOs Bill.”

In identifying the bill’s target as the “left,” its opponents have unwittingly handed the right-wing proponents of the bill a double victory, Jewish Home officials claimed happily on Wednesday.

After all, they said, the bill targets foreign funding for NGOs that advocate or carry out the following actions (what follows is a verbatim quote from the bill):

1. Calls to try IDF soldiers in international courts.
2. Calls to boycott, divest or sanction the State of Israel or its citizens.
3. The denial of Israel’s existence as a Jewish and democratic state.
4. Incitement to racism.
5. Support for armed struggle against the State of Israel by an enemy state or terror organization.

“If I were a left-winger, I’d be terribly insulted by the connection made this morning by Haaretz between ‘left-wing NGOs’ and NGOs that advocate those positions,” Jewish Home’s legislative director Gil Bringer, who took part in drafting the bill, quipped on Facebook Wednesday morning.

“If that’s what it means to be ‘left,’ then the left is a goner,” another Jewish Home official suggested.

There are important and worthwhile criticisms that could be directed at the bill. For one thing, the bill defines an organization as supporting those positions if any “member, employee or manager” is deemed to have supported them. How, one might ask, could an NGO police its staff and membership, and then prevent them from expressing such views? And even if it could do those things, should it?

Also, the bill treads on some very gray constitutional ground. For instance, what does it mean to oppose the notion of a “Jewish” state? Could ultra-Orthodox NGOs, who are clearly not the target of the bill, possibly endorse Israel as a “Jewish state,” never mind a democratic one? The lack of clarity could create a chilling effect on political expression, and even, theoretically at least, on the national debate about the meaning of a Jewish nation-state, according to an attorney with expertise in Israeli free speech issues who spoke with The Times of Israel on Wednesday.

At the same time, the bill comes to deal with a serious problem. Foreign governments spend vast funds (in Israeli NGO budgeting terms) on groups that seek to influence not only Israeli policy, but often the very constitutional underpinnings of the state. Even if one agrees with the specific positions advocated by those groups, it’s not automatically “anti-democratic” to seek limits to such foreign funding.

Indeed, a smarter response might seek to similarly limit private foreign funding to Israeli NGOs, which would affect many right-wing advocacy groups, rather than flatly denying that the right has a legitimate gripe about foreign governments seeking to influence Israel’s constitutional character.

One Knesset aide described it thus: “If Israel would start massively funding anti-monarchy groups in Britain or Belgium, because we’re opposed to monarchies, how would Britain and Belgium react?”

The right has another advantage: it has an enemy. The bill targets groups advocating boycotting Israel and dragging its soldiers and political leaders before international tribunals. Such groups, most Israelis believe, are not driven by a critique of Israel’s policies, but of its very existence. The BDS movement openly speaks of the fundamental illegitimacy of a Jewish nation-state, even as it supports the founding of a Palestinian nation-state. It doesn’t demand simply an end to occupation, but also Israel’s abandonment of the sacred Western Wall, its return of the Golan Heights to Syria, and the cancellation of the Law of Return.

No nation likes foreign governmental money in its politics, and the boycott movement has set as its goal the total dismantling of Jewish self-determination. When opposing bills that restrict foreign governmental funding for advocates of such boycotts, few friends are earned, either in Israel’s parliament or its public squares.

Opposition to the bill, and others like it, has also suffered from what can only be termed ignorance of the constitutional and legislative context in which the bill will function.

For example, lines 3, 4 and 5 in the list (above) of positions sanctioned by the bill are a verbatim quote from Article 7A of the Basic Law: The Knesset, which defines those three stances — rejection of Israel’s Jewish and democratic nature, incitement to racism, and incitement to armed conflict against Israel — as positions that can lead to a party being denied the right to run for the Knesset.

(It is worth noting that only one party has ever been denied the right to run for Knesset because it ran afoul of those provisions — that of far-right rabbi Meir Kahane, whose party was deemed by both the Central Elections Commission and the High Court of Justice as seeking the undermining of the country’s democratic rule.)

When it comes to denying Israel’s Jewish character, there is a great deal of jurisprudence in which the courts have explained that a political party must do more than simply oppose in theory Israel’s Jewishness, as every Arab party does, to be censured under Article 7A. Rather, it must be shown to meaningfully endanger it.

The new bill uses the same language, making it all but certain that it will be enforced by the courts with the same legal tests and standards.

All of which raises a question that underlines the ill-conceived nature of some left-wing opposition to the bill: How can one oppose a particular standard for limiting foreign governmental funding of NGOs when one has long endorsed a similar standard for denying the right to representation in parliament?

Article 7A is not the only precedent for the bill’s provisions, either. Article 49 of the Nonprofits Law grants district courts — the level just below the Supreme Court — the power to “order the dismantling of a nonprofit” if, among other things, it is deemed to have “the intention to deny the existence of the State of Israel or its democratic character.”

We’ve been through this before. In the last Knesset, there were those on the left who declared every such bill to be a “threat to democracy” and the end of free expression in Israel — but were often absent when the opportunity arose to negotiate, and failed to propose alternative legislation that would deal with the legitimate questions raised by the right.

There is no doubt the new bill, in its current draft form, can be challenged on several counts. MKs who disagree with it, including in the opposition, will have ample opportunity to change it. One needs only look to the legislative records of MKs such as Labor’s Eitan Cabel or Ra’am-Ta’al’s Ahmad Tibi, who often have a powerful influence say in legislation despite spending many years in the minority.

It’s also significant that previous versions of the bill were stopped by Prime Minister Benjamin Netanyahu himself, who worried that their sanctions were too harsh and that they defined the relevant NGOs too broadly (previous versions spoke of “political NGOs” without explaining what the term means).

But in resorting to sweeping accusations that it is “undemocratic,” the bill’s opponents risk losing the battle before it has even begun.

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