Will backing anti-BDS bills be a liability for 2020 Democratic hopefuls?

WASHINGTON — April 14, 2016. The day Democratic Party officials might have realized something was brewing on the American left. In the middle of a fiery primary debate between former secretary of state Hillary Clinton and Vermont Senator Bernie Sanders, the two were asked about the 2014 Gazan conflict, also known as Operation Protective Edge.

Clinton defended Israel, which she said did not invite Hamas’ relentless rocket attacks. She further excoriated the terror organization, which she said had squandered an opportunity to rebuild Gaza. For this blazing defense of the Jewish state, she received mild applause.

Jewish maverick politician Sanders, meanwhile, castigated Israel for what he deemed its excessive use of force during the 51-day offensive.

“We had in the Gaza area some 10,000 civilians who were wounded and some 1,5000 that were killed. If you’re asking not just me but countries all over the world, was that was a disproportionate attack? The answer is yes, I believe it was,” Sanders said, to uproarious applause. “In the long run,” he continued, “if we are ever going to bring peace to that region, which has seen so much hatred and so much war, we are going to have to treat the Palestinian people with respect and dignity.” That line brought down the house.

According to long-time member of the Democratic National Committee James Zogby, the founder and president of the Arab American Institute, that moment sent a message to Democrats. “I think Sanders discovered at the Brooklyn debate that there is a constituency that wants to hear about this,” Zogby recently told The Times of Israel.

Indeed, today in the Senate, most of the party’s leading 2020 prospective candidates seem to want to avoid creating a vulnerability with the pro-Palestinian constituency Zogby described.

While two new Democratic members of the new Congress, Michigan’s Rashida Tlaib and Minnesota’s Ilhan Omar, support the contentious Boycott, Divestment and Sanctions (BDS) campaign, the party at large still appears to be steadfastly against it. (The BDS effort is ostensibly opposed to the occupation but pilloried by the Israeli government and many Israel advocates as directed at Israel as a whole.) Efforts to use US government legislation to target the BDS movement’s adherents, however, are much more controversial.

The vast majority of the Democratic senators eyeing a 2020 bid have, as of this writing, either opposed or refused to support the Israel Anti-Boycott Act, legislation that would criminalize boycotting the Jewish state.

Likewise, there was a fierce left-wing resistance to the Combatting BDS Act, a second piece of legislation on the issue which would grant federal protection to states that pass anti-BDS laws. Florida Senator Marco Rubio sought to push it through as the first Senate bill introduced under the new Congress, but the Senate voted it down for further consideration Tuesday.

Sanders, who claimed the Combatting BDS Act would trample free speech rights, called the proposal “absurd.” The liberal Middle East advocacy group J Street also put out a blistering statement on the Rubio bill. “‘Not a single Democrat should vote to enable this farce,” it said.

Democratic 2020 hopefuls keeping their distance

The Israel Anti-Boycott Act is widely supported by Republicans: In the Senate alone, 43 of the 50 GOP senators (86 percent) in the last Congress co-sponsored it, versus just 15 of their 44 Democratic counterparts (34%).

Yet a close look at the list at the Democrats who co-sponsored that legislation is more noteworthy for which names are missing than those included: Ohio’s Sherrod Brown, New York’s Kirsten Gillibrand, California’s Kamala Harris, Minnesota’s Amy Klobuchar, Massachusetts’s Elizabeth Warren and Sanders did not sponsor the legislation.

(Gillibrand was an original sponsor but withdrew after facing a backlash from progressive constituents. Brown supports the legislation — he helped revise an amended version — but his name is conspicuously absent as a co-sponsor.)

A number of those senators who are preparing a 2020 presidential bid have been vociferous opponents of the the Israel Anti-Boycott Act. Sanders recently urged his colleagues to not include the legislation in an appropriations bill, while Warren announced her opposition to it in 2017.

“I do not support the boycott, I think the boycott is wrong,” Warren said. But, she added, “I think outlawing protected free speech activity violates our basic constitutional rights.”

Sanders and Gillibrand have echoed the same sentiment, opposing the bill on the grounds that it restricts the speech rights of Americans expressing a political viewpoint. Others, such as Harris and Klobuchar, have stayed quiet on the measure.

The only Democratic senators considering a 2020 run who was willing to sponsor the Israel Anti-Boycott Act is New Jersey’s Cory Booker, who said that changes made to the bill last spring to address speech concerns were sufficient.

In March, lawmakers revised the text to make clear that Americans could not be imprisoned for participating in Israel boycotts, and that criticism of the Jewish state could not be grounds for opening an investigation against any individual.

“Initial concerns that this bill unintentionally infringed on individuals’ First Amendment rights have now been addressed by changes agreed upon earlier this year,” Booker told Jewish Insider in November 2018. “I feel confident that those modifications safeguard Americans’ constitutional right to free speech.”

The American Civil Liberties Union (ACLU), for its part, said the law would still be unconstitutional despite those changes.

The bill “suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts,” ACLU staff attorney Brian Hauss said. “In fact, the bill’s sponsors openly admit that it was designed for this purpose.”

Other potential candidates who are not in the Senate, including former vice president Joe Biden and Los Angeles Mayor Eric Garcetti, have not yet been forced to take a position. They may only ever have to if they run and are asked by a niche audience, Zogby said.

The Israel Anti-Boycott Act is being intensely opposed by J Street and the ACLU, both of which argue that the measure, if implemented, would unconstitutionally wield the power of the state to suppress a political movement.

Advocates for the Israel Anti-Boycott Act’s, including its author, Senator Ben Cardin, claim that it’s an anti-discrimination effort meant to prevent Israeli individuals and businesses from being victimized because of their national origin.

But with a growing contingency of the left more sympathetic to the Palestinian cause, in tandem with Prime Minister Benjamin Netanyahu’s unequivocal alignment with US President Donald Trump, supporting the Israel Anti-Boycott Act could become a minor fault line between Booker and Brown and the other contenders who oppose the bill in the 2020 Democratic primary.

A split on the left

The legislation has been “alarming and deeply unpopular” with Democratic activists, liberal pundits and advocacy groups, said Logan Bayroff, J Street’s director of communications.

But the Israel Anti-Boycott Act started to gain more attention last month, when lawmakers tried to slip it into a last-minute spending bill. It may yet gain more attention if Cardin and others are successful at including it in a spending package to reopen the government.

“It’s one thing to try to quietly pass legislation, smuggling it into a much larger appropriations fight,” Bayroff recently told The Times of Israel. “It’s something else entirely to have to really own and defend that kind of legislation on the national political stage when trying to appeal to Democratic voters.

“I don’t think you’re going to see many, if any, Democratic candidates standing behind legislation that is so strongly opposed by the ACLU and which has the real possibility of infringing on free-speech rights,” Bayroff said.

The Israel Anti-Boycott Act does have some supporters on the left. The Jewish Democratic Council of America, an advocacy organization, has urged its passage.

The group’s executive director, Halie Soifer, told The Times of Israel she doesn’t think the bill will inflame Democrats in 2020.

“I don’t think that this will be a determining issue in the 2020 election,” Soifer said. “I think this will continue to be a component of the platform where the Democratic Party comes out against BDS. I don’t see any shifts within the party on this issue.”

Nevertheless, opposing the Israel Anti-Boycott Act is largely seen, according to multiple Democratic operatives, as an effective way to win over progressives who feel that Palestinian voices have been historically marginalized in American politics.

“No one is going to go to Iowa and stump on this, but it will become an issue when they are asked about it,” said Zogby, who was a Sanders supporter in 2016. “Are there going to be some Democratic candidates who say there’s some votes out there with young people and with black and Latino voters and others for talking truthfully about this issue? I think there will be.”

The extent to which Israeli-Palestinian issues will be litigated in 2020 is unknown, but one thing that progressive activists feel sure about is that Democrats are not going to want to be bogged down in a primary fight by supporting the Israel Anti-Boycott Act.

“It’s hard to say what will or will not be an issue in the primary,” said Bayroff of J Street. “But I do think that presidential contenders on the Democratic side are going to try to distance themselves from this legislation.”