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Anti-BDS bill clears first major hurdle in US Congress

Senate passes Middle East bill that includes provision against Boycott, Divestment and Sanctions movement
Senator Marco Rubio said states have a right to ban companies that boycott Israel (AFP/File photo)

WASHINGTON - The US Senate has voted overwhelmingly in favour of a bill that encourages states to cut off contractors who boycott Israel, a measure included in a wider Middle East policy bill that reinforces Washington's support for Israel and Jordan.

The bill, which passed in a 77-23 vote on Tuesday, says US states can "divest" from contractors they disagree with on the Israeli-Palestinian conflict.

Every Republican but one voted in favour of the bill, known as S. 1, while the Democrats were split 25-22.

Nearly every potential Democratic presidential contender, including senators Cory Booker,  Kirsten Gillibrand, Kamala Harris and Elizabeth Warren, as well as those considering 2020 candidacies - Sherrod Brown, Jeff Merkley and Bernie Sanders - voted against the legislation.

Free speech and Palestinian advocacy groups have slammed the bill, accusing its sponsors of trying to muzzle criticism of Israel at the expense of the US constitution.

However, Republican Senator Marco Rubio, who introduced the measure, has fiercely argued in its defence, saying that states have a right to "boycott the boycotters".

The Council on American Islamic Relations (CAIR) condemned the Senate's vote on Tuesday, urging the House of Representatives to block the measure.

"It is a shame that the US Senate would pass such an unconstitutional bill that violates the First Amendment right of all Americans to challenge the illegal and discriminatory actions of a foreign government and goes against the principles of free speech on which our country was founded," CAIR government affairs director Robert McCaw said in a statement.

The American Civil Liberties Union (ACLU)  also called on House members to drop the anti-BDS act because of the "threat" it poses to Americans' right to free speech.

"Today the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans," the group said in a statement after the vote.

While Rubio's bill boosts local and state efforts against boycotting Israel, it also extends to boycotts of "Israeli-controlled territories", effectively targeting boycotts of Israeli businesses in the illegally occupied Palestinian West Bank and Syrian Golan Heights.

Today the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans.

-ACLU

The proposal is named the "Combating BDS Act of 2019" in reference to the Boycott, Divestment and Sanctions movement, which seeks to pressure Israel economically and politically to end its abuses against Palestinians.

On Tuesday, Senator Rand Paul, the lone Republican who voted against the bill, said the right to boycott is an essential part of free speech, as guaranteed by the First Amendment of the US Constitution. 

"It is a fundamental aspect to freedom: to be able to dissent, to protest, even when everybody thinks you're wrong. That's what America is about," he said on the Senate floor before the vote.

Last week, Democratic Senator Chris Van Hollen accused Rubio of aiming to restrict free speech, calling anti-BDS state laws "blatantly unconstitutional".

While stressing that he does not support boycotting Israel, Van Hollen said that US citizens should be able to express their political opinions without fear of being punished by their government.

"I will fiercely defend the constitutional rights of any American citizen to express his or her views in such a peaceful way, if they so choose," he said on the Senate floor during a debate of the bill.

Dozens of states have passed various forms of anti-BDS bills in recent years, but several of those measures are currently being challenged in courts across the country.

Anti-BDS bill: The right to boycott is part of the US 'constitution'
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Federal judges in Arizona and Kansas declared anti-boycott laws in those states unconstitutional, for example.

However, legal efforts to counter these measures were dealt a blow last month when a US court in Arkansas ruled against a newspaper seeking to overturn the state's anti-BDS law.

On 23 January, Judge Brian Miller denied a request by the Arkansas Times to suspend the law. The newspaper had refused to sign a pledge certifying that it does not boycott Israel in order to run ads for state agencies.

However, Miller did not rule that the Arkansas law was constitutional; instead, he said the Times "failed to show" that boycotting Israel "is protected by the First Amendment".

Lara Friedman, president of the Washington, DC-based nonprofit Foundation for Middle East Peace, told MEE last month that while the US Senate bill has been a lightning rod for political sparring over the BDS movement, the real issue is free speech.

"You are saying put aside free speech – if you support Israel, you have to vote for it and you have to vote against your own constitution," Friedman told MEE. “This is not a vote that anyone should have to take."