Dangers in Marco Rubio's Combatting BDS Act of 2019

Yesterday, Senator Marco Rubio published a New York Times op-ed piece supporting his Combatting BDS Act of 2019, dismissing as meritless First Amendment concerns raised by those who oppose it.

The proposal is included as Title IV of Senate Bill No. 1, which addresses a number of foreign policy matters.  Title IV does, in fact, present some very serious First Amendment issues that we should not ignore.  Would supporters of Title IV have supported a law that would have blessed State Government discrimination against those supporting anti-Apartheid efforts aimed at South Africa during the decades of Nelson Mandela’s imprisonment?  I suspect not. And not just because we would have opposed Apartheid, but because we treasure the First Amendment.  In the United States, people have the right to express opinions that others may disagree with.  And that right is essential to our survival as a democracy.  

            Section 402(b) defines Boycott, Divestiture, and Sanctions (BDS) as follows: 

“An activity described in this subsection is a commerce-related or investment-related boycott, divestment, or sanctions activity in the course of interstate or international commerce that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel or Israeli-controlled territories for purposes of coercing political action by, or imposing policy positions on, the Government of Israel.”

As I read the bill, it would “bless” actions by State and Local Governments to refuse to do business with entities that choose to engage in any sort of a boycott of Israel (regardless of whether the boycott is limited to some territories by Israel occupied after the 1967 War).  It does not require the Federal Government to refuse to do business with such entities, but it does require State and Local Governments to report their anti-BDS sanctions to the U.S. Department of Justice.

To its credit, Section 405 of the Act provides 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.”  But does this provision in effect nullify the rest of the Act?  I am sure the writers do not think so.  The courts, even this Supreme Court, might determine that it does.

Let’s examine this example: Company A does contract work for a State that has a blanket anti-BDS policy, and it is learned that that Company A chooses not to do (or to cancel) contract work for an Israeli entity that destroys Arab villages to make way for further Israeli settlement on the West Bank. The State’s cancellation of Company A’s contract is blessed by the federal statute, unless, possibly, Company A could show that its abstinence from such work was simply a matter of conscience, with no expectation that it might influence the Israeli Government to desist from such destruction of villages.  In any event, it is hard to see how the State’s cancellation would not be a violation of Company A’s First Amendment rights.

Would the Act similarly bless a State’s action in refusing to allow public funds for the hiring of individuals who, in their private capacities, refuse to buy products produced on the West Bank out of a belief that current Israeli Government policies are cruel to Palestinians. By using the word “entities,” it would seem to immunize individuals from such discrimination.  But any individual who might be working as an LLC could be subject to such discrimination.  Note, for example, the horrible incident in Texas in which a special education teacher, who had been working for years in a public school system as a contract employee, lost her job because she would not sign a paper stating that she would not boycott Israeli products.  See here. The drafters of Title IV presumably would argue that the use of the word “entities” would avoid the Texas problem – but not if a person chose, for whatever reason, to incorporate themselves for professional reasons.

Senator Rubio challenges the idea that Title IV would violate the First Amendment by arguing as follows in the above-mentioned op-ed:

         “B.D.S. supporters are challenging these state laws in federal court, arguing essentially that private companies have a fundamental right under the First Amendment to government contracts or to investment by public-sector pensions in their company stock.

          “The problem is that there are no such rights. While the First Amendment protects the right of individuals to free speech, it does not protect the right of entities to engage in discriminatory conduct. Moreover, state governments have the right to set contracting and investment policies, including policies that exclude companies engaged in discriminatory commercial- or investment-related conduct targeting Israel.”

          There are several problems with this argument, notably the existence of the Supreme Court’s decision in Citizens United, which is premised on the proposition that corporations, just like actual human beings, have First Amendment rights. Moreover, both individuals and corporations may be prevented from engaging in conduct which discriminates against people based on race, religion, gender, etc. 

          So Senator Rubio’s position only holds water if BDS is nothing but pure, unadulterated anti-Semitism.  But whether the BDS movement contains people whose prime motivation is hatred of Jews is not dispositive.  There are also people (including many Jews) who are horrified at Israeli Government policies, and believe that those policies not only are cruel to Palestinians, but are dangerous to the future of the Jewish people.  They may be mistaken in thinking that the BDS tactic will cause a change in those policies.  But that is not a reason to seek limit their ability to make a living – or to take away their First Amendment rights.

          There is a significant dispute within the Jewish Community as to whether current Israeli Government policies are jeopardizing the long-term future of the Jewish Homeland.  And, among those who believe those policies are a danger to Israel, there is a significant dispute as to whether BDS is a viable tactic, whether aimed only at all Israeli interests, or only some. But it is UnAmerican to seek to silence those on one side of those arguments.  

          S.B. No. 1 passed the Senate, but faces an uncertain fate in the House. See here. Whatever happens in the House, related proposals around the country are great cause for concern.  

A proposal on how to assess the growing number of Democratic Presidential Candidates

A proposal for the Democratic Party:

Senators Cory Booker (New Jersey), Sherrod Brown (Ohio), Kirsten Gillibrand (New York), Kamala Harris (California), Amy Klobuchar (Minnesota), Bernie Sanders (Vermont), and Elizabeth Warren (Massachusetts); Governors Steve Bullock (Montana) and Jay Inslee (Washington); Representative Tulsi Gabbard (Hawaii); Mayor Pete Buttigieg (South Bend, Indiana); former Vice President Joe Biden; former Governor John Hickenlooper (Colorado); and former Representative Beto O’Rourke (TX) are all in, or very likely to be in, the Presidential Race.  And there may be more reasonably credible candidates. So it is time for the Democratic National Committee (and/or MSNBC, CNN, PBS, and even Fox) to lay down an approach for the candidates to be properly assessed by the Democratic Primary electorate.

Traditional debates would be useless at this point.  All the candidates or potential candidates agree on the broadest policy outlines, so what voters need is to learn the details of their proposals on such complex matters as, for example, how to reach Universal Health Care, how to achieve a fairer and more productive tax system, how to address Climate Change, and how to deal with foreign policy.  And we need to get a sense of how they think and how well-informed they are.  None of this can be gleaned from debates where candidates have a minute or two to answer specific questions.   Debates were verbal Twitter before Twitter existed.

So what should be done?  I suggest the following for 2019:

A series of weekly, nationally-televised discussions, randomly picking three or for candidates at a time, moderated by smart, objective, skilled journalists who would have the candidates actually talk about the key issues in depth.

After hearing these discussions, voters would have a better idea of to whom they will wish to contribute their money and time.  That process likely will winnow down the field to something more manageable before the voting actually begins.

There will be time enough for “debates” in 2020.

The New York Times urges withdrawal from Afghanistan: Has the Times asked all the right questions?

The New York Times Editorial Board urges that we end our military presence in Afghanistan.  See here.

It is clear to me that the Bush II Administration decision to expand hostilities outside Afghanistan was an epic disaster. The War in Iraq created the chain of events which led to the deaths of hundreds of thousands, perhaps millions, of people and which continues to create awful instability which threatens people beyond the Middle East.

Still, there is no way to know whether attacking Iraq created a diversion which, if it had not occurred, would have enabled us to stabilize Afghanistan by permanently eliminating the Taliban. The answer is probably that we would not have been able to reach that goal, even if we had not invaded Iraq. The Times is probably correct that there is no reason to think that our continued presence will lead to peace in Afghanistan. On the other had, there is no reason to believe that our withdrawal will lead to a chain of events that will lead to peace, other than through a return to the horrors of pre-9/11 Afghanistan.

I am not convinced by the Times that withdrawal will not make the bad situation there much, much worse. Taliban control of the entire country provided the safe haven for Al Qaeda to plan the attacks of 9/11. Are we better off continuing the stand-off rather than opening the door for a similar safe haven for groups like Al Qaeda or ISIS? The Times editorial does not address this question. It is not a rhetorical question. I do not know the answer. But it is a question we must address. We cannot come up with the best answer if we ignore the dilemma.