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.

2019 Temple Emanuel MLK Service, with Brenda Wolff, Member, Montgomery County Board of Education

Temple Emanuel's annual Martin Luther King, Jr., Commemorative Shabbat Service was held on January 18.  Cantor Lindsay Kanter did a wonderful job conducting the service, along our Temple Choir, Kol Zimrah, and the Temple Band.  Readings from Dr. King’s canon were presented by Temple teens Ethan Greeley, Seth Greeley, Rina Levy, and Aaron Northern. (Those readings may be found at the end of this blogpost.) Our guest speaker was newly-elected Montgomery County Board of Education Member Brenda Wolff.

 

In advance of the service, Temple member Sandy Fleishman put together a showcase in the lobby presenting some of the history of Dr. King, along with the involvement of the Jewish Community and Temple Emanuel in the struggle.  The showcase included the list of all MLK Service speakers we have had over the years.  Veterans of the 1960s Civil Rights Movement, political leaders, journalists, and activists in the more recent struggles for human dignity have all spoken here, and they challenged us to both remember the past and build toward the future.        

In my introduction of Brenda, I noted that in “the 1950s and ‘60s, Dr. King challenged us not only to dismantle legal segregation, but also to work toward a ‘Beloved Community’ in which all our children are valued and have the true opportunity to make the most of their lives.  From her perspective as an expert in education and as a new Board of Education Member, Brenda has much to offer us as we face the challenges in our local community to effectuate this important part of Dr. King’s vision.“

So because we need to look to the future in Montgomery County, we were very pleased that Brenda agreed to be our guest speaker. Her talk was thoughtful, provocative, and inspiring.  She opened by reminding us of Dr. King’s admonition that “[o]ur lives begin to end the day we become silent about things that matter.” Brenda spoke about things that matter in the Montgomery County Public Schools noting that the school system has many challenges and discussing the challenges we must meet if we are to “fully achieve Dr. King’s dream.” Her goal that evening was to bring into focus the challenges, so that we can work on solutions.  She succeeded.

Brenda explored four areas:  The Opportunity Gap, Resources, Student Safety, and Cultural Competency.  She noted that it is vital that “we have a fair and equitable distribution of resources and opportunities for all our students, regardless of zip code,” and further observed that many children “come with needs that require additional resources to support learning, whether it be special education, language services, trauma related issues, or homelessness, to name a few.”  She urged that we “invest in our education system to develop a base of citizens who are prepared for the future economy,” and to that end we must “evaluat[e] our programs to ensure that we are funding programs that work.”

Explaining that”[s]tudent achievement is impacted by their sense of security as well as their belief as to whether they are welcome in the school community, we must demand fair treatment of all and a zero tolerance of discrimination based on race, ethnicity, socio economic factors, religion, sexual orientation, and disability. . . . We must teach respect for all and we must model that respect with each other.”  Connected to this is the matter of Cultural Competency.  “It is implicit bias that we must constantly confront. If we fail to admit that this rests in all of us, and [are not] willing to confront it head on, then we will never achieve change.” Brenda urged that “parents and the community . . . be part of the development” of cultural competency training because they are “able to highlight particular cultural issues that may not be a part of the training . . . that may impact on whether any particular student or group of students feels a part of the school community.”  [My note:  This is an important aspect of the challenges we face, and has been directly addressed by other speakers at Shabbat Services over the last few years.  See, e.g., here and here.]

Commenting on “the creeping lack of civility” in our communities, Brenda reminded us that “[w]e cannot have a beloved community without the characteristics of equality, justice, and kindness.”  She urged that “[w]e must consciously and actively resist the subliminal urges to segregate our neighborhoods, offices, and schools.  We must speak up when there is an unfair allocation of resources.  We must fight against oppression and the targeting of people solely because of their race, color, ethnicity, sex or sexual orientation.”

Before the service began, I advised Brenda that the normal custom in Reform Synagogues is to not applaud at the end of sermons or similar presentations.  Yet, the spirit so moved the Congregation that there was an eruption of applause at the end of her talk.  

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2019 MLK READINGS

READINGS – PART 1

Tonight we celebrate the birthday of Dr. Martin Luther King, Jr.  Let us remember, this evening, some of his words.  To quote our prayer book, "Let us learn in order to teach; let us teach in order to do." 

Dr. King's vision was rooted in our own religious traditions:  He often quoted from Amos (5:24), "We are not satisfied, and we will not be satisfied, until justice rolls down like waters and righteousness like a mighty stream."

His vision was rooted in a faith that right would prevail: "The arc of the moral universe is long, but it bends toward justice."

He also knew that only through the work of our own hands would the world become a better place:  "Human progress is neither automatic nor inevitable. . . .  No social advance rolls in on the wheels of inevitability; it comes through the tireless efforts and persistent work of dedicated individuals, who are willing to be co-workers with God."

READINGS – PART 2

Dr. King was able to express to the American community not only the injustice of segregation, but the deeper ways in which it destroyed the social and moral fabric of all those involved in it.  In his famous Letter From the Birmingham Jail to the Clergymen of Birmingham, Dr. King explained --

            Injustice anywhere is a threat to justice everywhere.  We are caught in an     inescapable network of mutuality, tied in a single garment of             destiny.  Whatever affects one directly affects all indirectly.

He went on to predict that one day (indeed, now our own day) we all will know that civil rights workers who were willing to go "to jail for conscience's sake . . . were in reality standing up for the best in the American dream and the most sacred values of our Judeo-Christian heritage, and thusly, carrying our whole nation back to those great wells of democracy which were dug deep by the Founding Fathers in the formulation of the Constitution and the Declaration of Independence."

Martin Luther King recognized that our goal could not simply be the end of legal discrimination -- that we must go beyond that:  "We are simply seeking to bring into full realization the American dream -- a dream yet unfulfilled.  A dream of equality of opportunity, of privilege and property widely distributed; a dream of a land where men no longer argue that the color of a man's skin determines the content of his character; the dream of a land where every man will respect the dignity and worth of human personality -- this is the dream.

"When it is realized, the jangling discords of our nation will be transformed into a beautiful symphony of brotherhood, and men everywhere will know that America is truly the land of the free and the home of the brave."

READINGS – PART 3

Dr. King's lessons are lessons for our community, our nation, our world.  In his 1967 book,Where Do We Go From Here:  Chaos or Community?, he wrote: "Some years ago a famous novelist died.  Among his papers was found a list of suggested plots for future stories, the most prominently underscored being this one:  'A widely separated family inherits a house in which they have to live together.'"

"This is the great new problem of mankind.  We have inherited a large house, a great 'world house' in which we have to live together -- black and white, Easterner and Westerner, Gentile and Jew, Catholic and Protestant, Moslem       and Hindu -- a family unduly separated in ideas, culture and interest, who,    because we can never again live apart, must learn somehow to live with each            other in peace."

“If we are to have peace on earth, our loyalties must become ecumenical rather than sectional. Our loyalties must transcend our race, our tribe, our class, and our nation; and this means we must develop a world perspective. Now the judgment of God is upon us, and we must either learn to live together as brothers or we are all going to perish together as fools.”

READINGS – PART 4

Just days before his assassination, Dr. King spoke at the National Cathedral.  He cautioned that "One of the great liabilities of life is that all too many people find themselves living amid a great period of social change, and yet they fail to develop the new attitudes, the new mental responses, that the new situation demands.  They end up sleeping through a revolution. . . .

"[We]are challenged to develop a world perspective.  No individual can live along, no nation can live alone, and anyone who feels that he can live along is sleeping through a revolution.  The world in which we live is geographically one.  The challenge that we face today is to make it one in terms of brotherhood. . . .

"Through our scientific and technological genius, we have made of this world a neighborhood and yet we have not had the ethical commitment to make of it a brotherhood.  But somehow, and in some way, we have got to do this.  We must all learn to live together as brothers or we will all perish together as fools.  We are tied together in the single garment of destiny, caught in an inescapable network of mutuality. . . .”

Again, for it bears repeating: "[H]uman progress never rolls in on the wheels of inevitability.  It comes through the tireless efforts and the persistent work of dedicated individuals who are willing to be co-workers with God.  And without this hard work, time itself becomes an ally of the primitive forces of social stagnation.  So we must help time and realize that the time is always ripe to do right."