The Senate has passed a package of aid to Israel that includes a controversial provision called the “Combating BDS Act,” which specifically authorizes states to boycott businesses that boycott Israel.
The act is useless, divisive, and probably unconstitutional. It won’t fight BDS (which stands for “boycott, divestment, sanctions”) and won’t help Israel. But it has a strong chance of achieving its real goal: tearing the Democratic Party, and the American Jewish community, apart.
First, this law has zero practical value. There are very few businesses that support BDS as a matter of policy. Conceivably, the shareholders of left-leaning companies like Whole Foods or Ben & Jerry’s might be dissuaded from passing pro-BDS resolutions in the future, but even that’s a stretch.
What’s more, all the federal law does is grant permission to state and local governments to pass their own anti-BDS laws, which they already had. Twenty-three states already have anti-BDS laws on the books; they haven’t waited for permission.
Second, the law is likely unconstitutional because it penalizes companies (which, you may recall from Hobby Lobby, are people with First Amendment rights) for political speech. Cases already in progress are largely over whether a boycott is a speech act or a commercial act, a fine point of law that is beside the point of how un-American and un-patriotic it is to penalize acts of political protest. (As the NFL can remind you.)
Ironically, the more wrong I am about the first point—that is, if the law actually does have an impact—the more right I am about the second. The more anti-BDS laws succeed in chilling political speech—“chilling effect” being a key indicator of a First Amendment violation—the more clearly unconstitutional they are.
Finally, it’s hard to imagine better publicity for the BDS movement than censorship. For students and young people in particular, banning a non-violent movement of political protest only makes it seem more vital and more important. It’s the best PR the BDS movement could hope for.
But as a political wedge, the Combating BDS Act—introduced by Senator Marco Rubio—is a stroke of genius.
First, the Democratic Party is heading into a slow-motion, three-way car wreck when it comes to Israel/Palestine. On one side is the party’s old guard, strongly supportive of Israel, including many major donors (Jewish and non-Jewish) and leaders like Senate Minority Leader Charles Schumer.
On another side are younger Democrats who are more liberal, more sympathetic to Palestine, and more critical of Israel. These include leaders like Reps. Rashida Tlaib and Ilhan Omar, who are outspoken in their support of Palestinian rights and in their criticism of the Israeli occupation of the West Bank. (They are also the first Muslim women to serve in the House of Representatives.) But it’s not just two members of Congress. Polling data consistently shows that younger Democrats are more liberal, and more critical of Israel, than older ones. The party is hurtling toward an unavoidable internal conflict.
One sign of the battle to come: this week, pro-Israel Democrats formed a new group, “Democratic Majority for Israel,” to fight the rising tide of pro-Palestine sentiment within the party.
And then there’s a third side: liberals who are outraged by the suppression of political speech and political protest, even if they disagree with BDS on the merits. This was Bernie Sanders’ position in voting against the bill this week: “While I do not support the BDS movement, we must defend every American’s constitutional right to peacefully engage in political activity. It is clear to me that S.1 would violate Americans’ First Amendment rights.”
The Democratic Party is thus caught between at least three constituencies: the pro-Israel old guard, pro-Palestine young progressives, and anti-censorship liberals.
The fight is not going to be pretty, and already, Republicans are rubbing their hands with glee.
Second, even beyond the question of support for Israel and/or Palestine, Republicans know full well that supporting censorship is bound to offend core Democratic constituencies.
Notably, presidential contenders Kamala Harris and Cory Booker didn’t vote at all on the bill, which passed the Senate 74-19. Kirsten Gillibrand and Elizabeth Warren voted no; Amy Klobuchar voted yes.
Third, the BDS issue is dividing American Jews as well, driving some to the Republican party and driving almost everyone insane.
To an outsider, BDS may seem like an ordinary act of political protest. Don’t like Israel’s policies? Boycott it.
To many in the Jewish community, however, BDS is anti-Semitic hate speech. Why? Because of all the countries in the world, Israel is being singled out—and because most in the BDS movement oppose not only Israel’s policies but its very existence as a Jewish state.
This, of course, is not true. Israel isn’t being singled out by BDS activists—it’s being singled out by the U.S. government, which gives it $3.8 billion per year in aid. That makes it qualitatively different from other human rights violators like Saudi Arabia or China. But facts matter little in this debate; American Jews are haunted by traumatic memories of persecution, and by new reminders that anti-Semitism has not disappeared.
Having been part of these debates for nearly two decades, I can say that they are incredibly painful, infuriating, and hopeless. Many Jews care passionately about Israel, and simply can’t think clearly about it. They still see the most heavily armed nuclear power in the Middle East as an underdog, a wimpy Jewish kid being beaten up by bullies at school. Which, of course, many of us used to be.
It doesn’t matter to these people that many Jews support BDS – quite the contrary, the institutional Jewish community has banned those Jews (chiefly affiliated with the Jewish Voice for Peace organization) from participating in Jewish communal life, holding programs at Jewish institutions, or receiving Jewish communal funds.
Nor does it matter to them that Israel has lurched so far to the right in the last 15 years that it would be unrecognizable (or perhaps anathema) to its liberal Zionist founders. Loyalty oaths at home, international propaganda abroad, and, of course, increased construction of settlements in the West Bank have greatly changed the character of the Jewish State. It’s not just that American progressives have moved left—it’s also that Israel, and of course the Trump administration, has moved right.
Because right-wing donors dominate the institutional community (left-wing Jews are more apt to donate to non-Jewish causes, slanting the Jewish organizational donor base right) these views are now the official policies of Jewish federations, granting agencies, and political bodies.
Thus the Anti-Defamation League, for example, has misleadingly included support for BDS in its indices of anti-Semitism. (I am an ordained rabbi, and when I took the survey the ADL used to measure anti-Semitism, I qualified as an anti-Semite on its terms.) And despite internal staff memos urging the organization not to support anti-BDS censorship and opposition from its venerable former director, Abe Foxman, donors have successfully pressured the organization to back the bills in state and federal legislatures.
In other words, the anti-BDS campaign is tearing apart both the Democratic Party and the American Jewish community, while benefiting Republicans eager to postpone their party’s demographic oblivion.
This is not a shadowy conspiracy; the strategy is out in the open. Norm Coleman, the national chairman of the Republican Jewish Coalition and a former senator from Minnesota, told The New York Times that the anti-BDS bill sends “a message to Jews who still care about Israel, to say, ‘You’ll be much more comfortable in the Republican Party.’”
Notice, by the way, how Coleman equated “care about Israel” with support of an anti-democratic bill that censors protest of Israel. As if it is impossible to care about Israel but oppose censorship—or Israeli government policies, for that matter.
As if to highlight the absurdity of the Combating BDS Act, the bill will be dead on arrival in the House of Representatives. Speaker Nancy Pelosi would surely rather move to Gaza City than tear her own party apart over this issue, and already, the House has separated the massive aid package to Israel from the anti-BDS provisions. The bill is going nowhere.
But it doesn’t have to. It’s already accomplished its objectives, and it’s but one battle in a long war of attrition against the Democratic Party. American Jews are just collateral damage.