In recent weeks, there has been much misinformation about the Combating BDS Act (CBA), an important bipartisan bill which would simply clarify that U.S. states have the authority to act against commerce- or investment-related boycotts targeting Israel without fear that they are preempting federal authority.
These mischaracterizations take advantage of the hyper-charged partisan environment to promulgate baseless slogans and pure disinformation while rarely addressing the specifics of the bill.
To help clear things up, four common myths on the issue are debunked below:
MYTH #1: The Combating BDS Act restricts free speech.
FACT: Nothing in this bill restricts constitutionally protected free speech.
The text of the bill, in Sec. 405, specifically notes that “Nothing in this title shall be construed to infringe upon any right protected under the First Amendment to the Constitution of the United States.”
The legislation only covers corporations’ commerce- or investment-related activities in the course of interstate or international commerce. The bill would not impact companies that simply express their opposition to Israel or Israeli policies.
It is well-established that Congress may impose regulations barring compliance with foreign boycotts that conflict with U.S. legislative or foreign policy interests, without running afoul of the First Amendment. Likewise, Congress may also restrict the information Americans can provide to foreign governments with respect to foreign boycotts. See: Trane Co. v. Baldrige, 552 F. Supp. 1378 (W.D. Wis. 1983) and Briggs and Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984).
This bill does not and cannot abridge Americans’ right to free speech or their right to sue states for perceived violations of First Amendment rights.
MYTH #2: The bill will negatively impact individuals’ right to boycott or criticize Israel.
FACT: The bill in no way impedes the right of any American to boycott or criticize Israel. The law does not even apply to individuals. The law only recognizes that state and local governments may adopt certain policies related to corporations, companies, business associations, partnerships or trusts without the concern that federal law in any way preempts the state and local governments’ ability to do so. Corporations are free to express their opposition to Israeli policies, as mentioned above.
Individuals who choose to personally boycott Israel or express support for boycott efforts would clearly not be subject to the law.
The Combating BDS Act does not limit the rights of individuals—including those acting as government contractors—to personally engage in boycotts of Israel. Such contractors can refuse to buy Israeli goods or do business with Israel in their private capacity, so long as they do not discriminate against or limit commercial relations with Israel or persons doing business in Israel while in their professional capacity.
MYTH #3: The Combating BDS Act would “encourage” states to pass anti-BDS laws.
FACT: This is an utter mischaracterization of what the bill does. The CBA simply clarifies that states have the right to pass such laws, if they so choose, without preempting federal authority. In fact, for years, without the CBA in effect, more than two-dozen states have already passed such laws.
Specifically, the bill notes in Sec. 402(a) [emphasis added] that “Notwithstanding any other provision of law, a State or local government may adopt and enforce [these] measures”. The use of the word “may”—as opposed to “must,” “should,” etc.—makes clear that those who claim the bill “encourages” states to pass anti-BDS laws are either misleading or misinformed.
MYTH #4: States have no authority to combat boycotts of the Jewish state.
FACT: The United States Supreme Court has held that a state government may exercise its discretion in selectively funding programs, without running afoul of the Constitution. The converse is also true—a state government may choose not to fund or subsidize activities of companies whose actions are at variance with state law or policy. Likewise, U.S. courts have long held that the government, as an employer, exercises wide discretion and control over those who contract with it and may limit the activities of those contractors in the interest of achieving the government’s goals.
The CBA is not the first instance in which the federal government has acknowledged a state’s inherent powers to divest from companies acting contrary to legislative policy. In fact, the CBA mirrors a provision within current federal law—the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA)—which clarifies that state governments may divest from companies invested in Iran’s energy sector.
Congress should take up and pass the Combating BDS Act as quickly as possible. This important bipartisan bill seeks both to protect states against claims they are preempting federal authority and to demonstrate Congress’ strong support for state measures consistent with Congress’ historic commitment to oppose boycotts of Israel.
The Combating BDS Act has attracted widespread bipartisan support and was cosponsored in the previous Congress by the current Senate leaders of both parties, as well as the current Chairman and Ranking Members of the Senate Foreign Relations Committee and Senate Finance Committee, along with many other members from both parties and in both chambers.
Type: Near-East-Report Near East Report