Since March, the California legislature has struggled to draft a bill aimed at thwarting BDS - the boycott, divestment and sanctions movement. As readers of these pages know, BDS is a movement that promotes South Africa-style boycott and divestment strategies to oppose Israel and its policies. For many of its supporters, BDS is a way to challenge the very legitimacy of the Jewish state.
After a torturous path of amendment and revision, the State legislature now has in AB 2844 something it thinks it can live with. But the revised bill, however well-intentioned, remains seriously flawed. Governor Brown should veto it.
Earlier versions of the bill would have created a list of companies that participate in BDS – defined to include boycotts targeting Israel or settlements – and prohibited companies on the list from becoming state contractors (a blacklist). After being cautioned by its own legal counsel that economic boycotts qualify as protected free speech under the First Amendment, the legislature abandoned its original scheme and converted AB 2844 into a generic anti-discrimination law.
The new law requires state contractors to certify, under penalty of perjury, that they comply with California’s anti-discrimination laws, including the Fair Employment and Housing Act and the Unruh Act. The bill does not mention BDS, but it cautions that any policy maintained by state contractors “against a Sovereign nation or peoples, including but not limited to the nation and people of Israel,” may not be used to discriminate in violation of those laws.
If this sounds a little confusing, it is. It is not clear whether AB 2844 prohibits any conduct that is not already illegal under California law, because state contractors are already required to certify that they comply with anti-discrimination laws. And the formal findings and analyses that accompany the bill do not explain what, if anything, the new bill would add to existing rules.
The bill does send a symbolic message that California opposes BDS. And AB 2844 avoids the pitfalls of many anti-BDS bills and regulations recently adopted in other states, which unconstitutionally penalize participation in BDS, and which will almost certainly face credible legal challenges.
Nevertheless AB 2844 is unsound. The bill’s lack of precision creates a serious risk that courts will give it unexpected interpretations, and it could become a victim of the law of unintended consequences. On top of all that, it is unfair to put contractors at risk of perjury – with potential criminal sanctions – by requiring them to sign a certification for such a confounding statute.
The legislative history of waffling and revision on the proposal will likely subject the legislature to embarrassment and ridicule for pandering to anti-BDS, pro-settlement forces in the Jewish community. After learning that it could not prohibit state contractors from exercising their constitutional right to participate in BDS, it looks like the legislature scrambled to come up with something, anything, to please these groups. And yet, in a backhanded way, the bill legitimizes BDS. It states, in effect, that it is perfectly fine to support BDS, so long as you don’t discriminate in the process. And although some claim that BDS is by its very nature anti-Semitic, if there is one point of clarity in AB 2844, it is that BDS is not intrinsically discriminatory against Jews or others.
Finally, there lurks beneath the bill a difficult and complex question about what it means to have a policy against “the nation and people of Israel.” There are many strong supporters of the State of Israel, including our organization Americans for Peace Now, who oppose the extreme positions of BDS, but who support a boycott of economic activities that further Israel’s dangerous settlement policies in the West Bank and East Jerusalem. Does the “the nation and people of Israel” in AB 2844 include settlements that the United States government has long declared illegitimate and that are clearly illegal under international law?
Whether state government should get involved in foreign policy issues is always a difficult question. That state government needs to be particularly sensitive when entering the thicket of the Israel-Palestine conflict should be self-evident. The fact is, there is no pressing BDS problem that warrants this amount of legislative attention. Nobody is claiming that hordes of state contractors are boycotting Israel, let alone using BDS as a pretext to discriminate against women, the disabled, racial minorities or Jews.
The California experience shows that efforts to defeat BDS legislatively will, ineluctably, run into serious constitutional hurdles and likely will result in ineffective if not counterproductive laws. Here, AB 2844 will give exposure to the BDS movement, but it’s just not clear what else it will do – and it’s not clear as of now whether that exposure will harm the movement. The BDS controversy is best left to those who can educate, persuade and influence. This is an issue for public discourse, not confusing and muddled legislation.
Steven J Kaplan and Sanford Weiner are Americans for Peace Now National Board Members. Steven J Kaplan is Chair of the Los Angeles Region of APN.
This article appeared first on September 12, 2016 in the Jewish Journal.