Israel boycott fight roils Democrats in year-end spending debate

A bipartisan group of lawmakers is scrambling at the eleventh hour to include controversial language in a year-end spending bill prohibiting U.S. companies from joining boycotts of Israel launched by the United Nations or similar groups.

Sen. Ben Cardin (D-Md.) and other members are pressing congressional leaders to attach his Israel anti-boycott legislation to a sweeping omnibus spending package — a move that could complicate efforts to prevent a government shutdown.

{mosads}“There is bipartisan interest in this issue, but everything is still being negotiated and nothing has been decided,” said one senior House Republican aide.

Supporters of the measure say it would simply expand an existing prohibition on companies participating in anti-Israel boycotts led by foreign governments to those orchestrated by international governmental organizations (IGOs).

“We don’t want our companies to be forced into implementing other countries’ decisions to boycott U.S. allies,” said a Cardin spokesperson.

But the provision has been hammered by human rights and free speech groups, which contend the proposal prioritizes the concerns of a foreign government over constitutionally guaranteed First Amendment protections. Those protections, the critics maintain, include the right to participate in the so-called boycott, divestment, sanctions movement (BDS) — an international campaign designed to press Israel on human rights issues surrounding the long-running Israeli-Palestinian conflict — regardless who is coordinating those activities. 

“This bill sets a precedent for penalizing First Amendment actions because they’re unpopular or because the government doesn’t agree with them,” said Manar Waheed, senior legislative and advocacy counsel at the American Civil Liberties Union (ACLU). 

“This is a step on a road to the erosion of First Amendment rights in a way that will impact movements and viewpoints for the future.”

A decision to attach the language to an enormous, year-end spending bill is sure to stir controversy, particularly on the Democratic side of the aisle, where a number of liberal lawmakers have accused Israel of human rights abuses amid the decades-long Palestinian conflict.  

Rep. Betty McCollum (D-Minn.) sounded a warning last week that congressional leaders are working serendipitously “to slip language into a must-pass spending bill that criminalizes politically motivated boycotts against Israel.”

“The Israel Anti-Boycott Act violates our right to free speech,” McCollum tweeted.

The office of House Minority Leader Nancy Pelosi (D-Calif.), who’s poised to take the Speaker’s gavel next year, declined to comment on the merits of the legislation. 

A senior House Democratic aide suggested the issue will necessarily be punted to next year, if talks over an omnibus break down and Congress is forced to pass a short-term continuing resolution (CR).  

“More likely is a CR so this wouldn’t have a place to go,” the aide said.

The office of Senate Minority Leader Charles Schumer (D-N.Y.) declined to comment on the record, while a spokesman for Sen. Mitch McConnell (R-Ky.) said the majority leader has no intention of negotiating the spending bill through the press. 

Co-sponsored by Sen. Rob Portman (R-Ohio), Cardin’s anti-boycott legislation is just one of many provisions lawmakers from both parties are clamoring to attach to the enormous spending bill, which is among the last pieces of legislation to be considered before the year’s end. 

The legislation is a response to a resolution adopted by the United Nations Human Rights Council (UNHRC) in 2016, when it sought to establish a database of international companies doing business in disputed territories occupied by Israel, including the Gaza Strip and West Bank.

Supporters of the proposal say it marks a simple expansion of anti-boycott language adopted in 1977 as part of amendments to the Export Administration Act, which sought to protect U.S. companies from being forced to engage in foreign-backed boycotts against their better judgment. At the time, the concern was the Arab League boycott against Israel, which featured black lists designed to pressure international companies to join the cause.  

Bill supporters say there’s an urgency to passing the legislation now, since the UNHRC is moving forward with its database. 

“It’s that movement from the international governmental organizations — the UNHRC specifically — that is driving some of the increased urgency of trying to get this done sooner rather than later,” said Cardin’s spokesperson. “Because they’re not waiting for Congress. They’re just plowing ahead.”

The critics see another reason behind the push to move the legislation this month. Democrats are set to take control of the House next year, and several incoming freshmen on the Democrats’ side have been vocal supporters of the BDS movement, including Rep.-elects Rashida Tlaib (D-Mich.), the daughter of Palestinian immigrants, and Ilhan Omar (D-Minn.), the first Somali-American ever elected to Congress. 

“There’s very much a reason that members of Congress, leadership in Congress, is trying to push this through a spending bill without a debate before the new Congress comes in, and that’s because they know they’ll have less support for legislation that violates the First Amendment in this way in the new Congress,” said the ACLU’s Waheed. 

Backing the critic’s argument, two federal courts have ruled this year against Israel anti-boycott laws passed by state lawmakers in Kansas and Arizona. Both of those suits were brought by the ACLU, which has launched a similar challenge in Arkansas and filed yet another in Texas on Tuesday. 

“This is very clearly part of a larger effort to silence speech on this issue,” said Waheed.

The debate arrives as congressional leaders are scrambling to pass a series of seven federal spending bills before midnight Friday to prevent a partial government shutdown. The negotiations have been entangled in President Trump’s demand that funding for the Homeland Security Department include $5 billion for new construction of the U.S.-Mexico border wall that was central to his 2016 campaign — a demand that’s a nonstarter with Democratic leaders. 

Some supporters of the anti-boycott legislation said they’re in no hurry to rush the legislation through Congress this year. 

Rep. Eliot Engel (D-N.Y.), who’s in line to chair the House Foreign Affairs Committee in the next Congress, said it will be extremely tough to get anything “of import” into an omnibus bill this month. 

“We’re realistic in terms of what can be gotten and what cannot be gotten,” Engel said. 

“I’m not so worried about it, because we’re going to take over next year,” he continued. “If we don’t get to it now, we’ll have plenty of time in January and February to hit the ground running.”