This bill would amend the Export Administration Act of 1979 that bars participation in the Arab boycott of Israel to block U.S. persons engaged in interstate or international commerce from complying with or supporting a boycott of Israel or Israeli businesses, including those operating in the settlements, called for by a foreign country or an international institution, such as the UN or EU. It would also block U.S. persons from providing or requesting information on any person’s business relationship with Israel. This provision was designed in response to the 3/24/16 UNHRC request for the creation of a blacklist of all Israeli and international firms operating directly or indirectly in the occupied Palestinian territories (see JPS 45), with specific application to BDS initiatives. Any person who knowingly violates or attempts to violate this provision would be eligible for civil penalties of up to $250,000 or a criminal penalty of up to $1 m. and 20 years in prison.
The bill would also require the Export-Import Bank to consider policies and actions intended to penalize or otherwise limit relations with Israel when evaluating potential credit applications.
Although the bill’s “Definitions” section stated that “nothing in this section shall be construed to alter the established policy of the United States or to establish new U.S. policy concerning final status issues associated with the Arab-Israeli conflict, including border delineation,” critics alleged that the measure would effectively apply anti-BDS initiatives targeting both Israel as well as Israeli settlements in the occupied Palestinian territories.
On 7/17/17, the American Civil Liberties Union (ACLU) published an open letter in which they urged members of the House and Senate to oppose this bill as “antithetical to free speech protections enshrined in the First Amendment.” The following day, the liberal Zionist lobby group J Street came out against the bill, despite the group’s traditional opposition to BDS. J Street’s criticisms sparked a wave of debate resulting in other progressive groups and lawmakers voicing opposition to the bill (see JPS 47 ). As a result, Sen. Kirsten Gillibrand (D-NY) formally withdrew her cosponsorship on 8/1/17.
After criticism from civil liberties groups undermined the bipartisan support for this bill in late 2017, its supporters regrouped in early 2018. AIPAC launched (3/1/18) a campaign pushing for this bill and another anti-BDS bill (S. 170 of 1/17/17). Original sponsors Cardin and Sen. Rob Portman (R-OH) then released an updated version of the bill on 3/3/18. The new draft affirmed that nothing the bill “should be construed to diminish or infringe on any right protected under the First Amendment,” according to their 3/3/ press release. It also limited penalties for violations of its key provision to fines only (the original bill would have allowed for prison sentences of up to 20 years), and clarified a few other small issues. “I am confident this bill strikes the right balance between protecting U.S. businesses and our Israeli allies from unfair targeting by international organization, while upholding America’s commitment to free speech and individual liberty,” Portman said (3/3).
After Cardin and Portman released their amended text, four new cosponsors signed on to back the bill (only one of whom was a Democrat, Sen. Heidi Heitkamp [D-ND]). The ACLU, one of the chief opponents of the original draft, sent a letter to the Senate on 3/6 opposing the new draft. “The proposed changes are improvements, but the revised bill continues to penalize participants in political boycotts in violation of the First Amendment. If it is enacted in this form and takes effect, we will strongly consider fighting it in court,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project. The ACLU had already challenged similar anti-BDS bills in Arizona and Kansas, with a judge in the former ruling in the group’s favor.