Is the anti-boycott bill dead or alive? It could come down to Trump’s wall

Legislation’s chance of passing may be tied to factors that ostensibly have nothing to do with Israel, such as the budget for president’s Mexican border plans

A migrant crosses the US-Mexico border fence before turning himself in to US Border Patrol in Tijuana, Mexico, on December 16, 2018. (Mario Tama/Getty Images/AFP)
A migrant crosses the US-Mexico border fence before turning himself in to US Border Patrol in Tijuana, Mexico, on December 16, 2018. (Mario Tama/Getty Images/AFP)

WASHINGTON (JTA) — Sens. Ben Cardin, Democrat of Maryland and Rob Portman, Republican of Ohio have been leading the charge on behalf of a Senate bill that would punish those who participate in or facilitate the anti-Israel boycott. The sponsors hope to get the bill through in the final weeks of this Congress.

Two Jewish senators who caucus with Democrats — Bernie Sanders, Independent of Vermont, and Dianne Feinstein of California — have asked the chamber’s leaders, the majority’s Mitch McConnell of Kentucky and the minority’s Chuck Schumer of New York, to end their bid. (For those who count, Feinstein, Sanders, Cardin, and Schumer — who backs the bill — are Jewish.)

So what’s in Israel Anti-Boycott Act and where does it stand? This is complicated and, as is typical with Congress, includes factors that ostensibly have nothing to do with Israel — chief among them, President Donald Trump’s $5 billion wall with Mexico.

The free speech question

Cardin has gone some way to addressing complaints from Democrats that the bill infringes on free speech — but not enough for Sanders and Feinstein. In their letter this week to Schumer and McConnell, they wrote that “while we do not support the Boycott, Divestment and Sanctions (BDS) movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacefully without fear of or actual punishment by the government.”

Critics of the anti-boycott bills, like the American Civil Liberties union, say they punish the right to free speech, and ask what a person’s personal beliefs have to do with the job they perform as a state or commercial contractor. The latest version of the Senate version of the bill explicitly exempts non-commercial boycotts from punishment. So Joe Boycotter, caterer, can boycott Sabra hummus all he wants at home, but if he refuses a request to provide Sabra at the save-the-whales fundraiser, he could be in trouble. (This distinction is exactly what’s playing out in Texas, where a speech pathologist says her free speech rights are impinged by a state version of the bill. On the other side are those who say she can say and do what she wants at home, but can’t act on her pro-boycott feelings on the job.)

Moreover, Cardin has also, in recent iterations of the bill, made clear that the legislation, which is based on 1970s laws that targeted the Arab League’s Israel boycott, only invokes financial penalties and not prison time. (Here’s an explainer from Cardin’s office on how he and Portman have changed the bill.)

That’s still too much for the bill’s critics, who note that the anti-Arab League laws from the 1970s were designed to address a coercive boycott by an anti-Israel cartel. The Cardin bill penalizes compliance with a movement, BDS, that seeks voluntary, not coerced, action. “Neither the United Nations or the European Union have authority to force companies to do anything,” said Kathleen Ruane, ACLU’s Senior Legislative Counsel, in a conference call this week with reporters, naming two entities who have called for boycotts of goods from the settlements.

The settlements question

The bill explicitly extends the law to penalize those who boycott the settlements — both the UN boycott and the EU boycotts named in the bill target only settlements, and not Israel per se. (Americans for Peace Now, a member of the Conference of Presidents of Major American Jewish Organizations, is in that category while opposing BDS overall.)

Democratic sources have said that House Democrats are writing the ban on settlement boycotts out of the bill (lead House sponsors are Rep. Peter Roskam, R-Ill., who was just defeated in a re-election bid, and Rep. Juan Vargas, D-Calif.). Democrats do not want the US government to de facto recognize Israel’s claim to parts of the West Bank. The revised text has yet to be made available.

The wall question

Portman and Cardin hoped to have the bill attached as an amendment to must-pass spending bills (lots of folks are describing this as “sneaky,” but it’s commonplace in a Congress’ last weeks). A staffer for a senator backing the bill told me that was unlikely if Congress passes a stop-gap “continuing resolution,” but more likely if Congress manages to pass an omnibus, multifaceted spending bill.

So what happened? The Senate passed the stripped-down continuing resolution on Wednesday. Trump would not sign the CR because it does not include funding for his border wall with Mexico. Instead, he’s backing a House omnibus bill that was passed by that chamber’s outgoing Republican majority and that includes the $5 billion he wants. It’s not clear if any version of the anti-boycott bill is in the House omnibus.

So what happens next? The Senate is considering the House omnibus, wall funding included, as this is written on Friday. Republicans favor it; Democrats do not. Republicans have the majority, but Democrats can still, under a filibuster, block it. Trump wants McConnell to invoke the “nuclear option,” and kill the filibuster rules. One outgoing GOP senator, Jeff Flake of Arizona, said he would vote against killing the filibuster, which might deny McConnell the 51-49 majority he would need to end it.

Otherwise, this is taken up by the 116th Congress, with its Democratic majority in the House, and the odds are then that the wall goes unfunded and that the anti-boycott act goes back to the drawing board. (Also, government shuts down.)

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