Legislative Round-up: February 1, 2019

Produced by the Foundation for Middle East Peace in cooperation with Americans for Peace Now, where the Legislative Round-Up was conceived 

  1. Bills, Resolutions, & Letters
  2. The (Continuing) Saga of S.1
  3. Hearings
  4. On the Record

Shameless plug: Check out the 1/24 edition of Mehdi Hassan’s podcast, “Deconstructed,” featuring Marc Lamont Hill and me (Lara Friedman), on the topic, “What You Can’t Say About Israel

1. Bills, Resolutions, & Letters

(GRAB-BAG OF AIPAC-SUPPORTED MIDEAST BILLS, INCLUDING BILL ENCOURAGING/SUPPORTING UNCONSTITUTIONAL STATE ANTI-BOYCOTT LAWS) S. 1: See Section 2, below, for details on S. 1.

(POSSIBLE ATCA “FIX” BILL) HR 702: Introduced 1/22 by Conaway (R-TX) and Ryan (D-OH), “To amend title 28, United States Code, to provide for the jurisdiction of courts of the United States and of the States over certain foreign entities, and for other purposes.” Referred to the House Committee on the Judiciary. As of this writing - more than a week after the bill was introduced - there is still no text online, and requests for text from the sponsor offices have been ignored. Given the title, it seems quite likely that the bill is intended as a legislative fix for ATCA, the Anti-Terrorism Clarification Act. That bill, which I have written about at length previously, has had the effect of completely ending US assistance for the Palestinians, including security assistance that directly benefits Israel and humanitarian assistance. ATCA also imperils US aid more widely, creating such far-reaching liability that aid organizations around the world would be taking a massive risk to work with the U.S. in any context. For details, see two excellent pieces published this week in the Hill: Scott Anderson’s “A ticking time bomb for US foreign assistance,” and Debra Shushan’s “Congress must move quickly to fix the Anti-Terrorism Clarification Act

(BASHING BDS & CRITICS OF ISRAEL, USING FIGHT AGAINST ANTI-SEMITISM AS COVER) H.Res.72: Introduced 1/23 by Zeldin (R-NY) and 5 GOP fellow travelers, the misleadingly titled, “Rejecting anti-Israel and anti-Semitic hatred in the United States and around the world.” This resolution consists of 18 “whereas clause.” The first 14 of these clauses are collectively a scurrilous attack on critics of Israel and especially supporters of boycotts – including calling out by name two members of Congress, Tlaib (D-MI) and Omar (D-MN). Referred to the Committee on Foreign Affairs and the Committee on the Judiciary. Zeldin press release is here.

(NEW IRAN-RELATED SANCTIONS) HR 361: Introduced 1/9 by Wilson (R-SC) and 6 bipartisan cosponsors, the “Iranian Proxies Terrorist Sanctions Act.” Referred to the Committee on Foreign Affairs. On 1/23 Wilson delivered remarks on the House floor introducing the measure, here.

(SUPPORTING COPTIC CHRISTIANS IN EGYPT) H. Res. 49: Introduced 1/16 by Hill (R-AR) and 21 bipartisan cosponsors, “Supporting Coptic Christians in Egypt.” Referred to the House Committee on Foreign Affairs. Hill floor statement on the resolution is here.

(SPECIAL ENVOY TO MONITOR/COMBAT ANTI-SEMITISM) HR 221:  Introduced 1/3 by Smith (R-NJ) and having 87 bipartisan co-sponsors, the “Special Envoy to Monitor and Combat Anti-Semitism Act.” Passed/agreed to in House 1/11 under suspension of the rules by a vote of 411-1.  On the Record: Smith (R-NJ): Over the past decades, there has been an unprecedented rise in anti-Semitic acts and rhetoric all over the world: Jews harassed, assaulted, and even murdered; synagogues attacked; graves and cemeteries desecrated; anti-Semitic slurs; plus targeting the State of Israel itself with the three Ds--demonization, double-standard, and delegitimization, as my good friend, the great Soviet Jewish refusenik and religious prisoner Natan Sharansky named them. The so-called BDS movement to boycott, divest from, and sanction Israel is one of the most pernicious examples of what Sharansky called the new anti-Semitism…” Also Hastings 1/11: “…across the globe, the growing trend of anti-Semitism masked as anti-Zionism threatens Jewish communities and delegitimizes the existence of Israel.”

(US POLICY ON SYRIA) HR 31: Introduced 1/3 by Engel (D-NY) and having 57 bipartisan cosponsors, the “Caesar Syria Civilian Protection Act of 2019.” Passed by the House 1 under suspension of the rules, as amended, by voice vote. House floor consideration is here. NOTE: This text is included in S. 1.

(US OUT OF YEMEN WAR) H. J. Res. 37: Introduced 1/30 by Khanna (D-CA) and having 74 cosponsors, “Directing the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” Referred to the Foreign Affairs Committee.

(US OUT OF YEMEN WAR) S. J. Res. 7: Introduced 1/30 by Sanders (I-VT) and having 2 cosponsors, “A joint resolution to direct the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” Referred to the Foreign Relations Committee

(NO US AID TO KSA YEMEN WAR) HR 910: Introduced 1/30 by Lieu (D-CA) and 2 cosponsors, “To prohibit the use of funds to provide for in-flight refueling of Saudi or Saudi-led coalition aircraft conducting missions as part of the ongoing coalition intervention in Yemen.” Referred to the Committee on Foreign Affairs, and the Committee on Armed Services.

(NO $$ FOR US ARMED FORCES IN SYRIA) HR 914: Introduced 1/30 by Malinowski (D-NJ) and 7 cosponsors, “To limit the use of funds to reduce the total number of members of the Armed Forces serving on active duty who are deployed to Syria, and for other purposes.” Referred to the House Committee on Armed Services.

 

2. The (Continuing) Saga of S. 1

Background/analysis on Combating BDS Act

For analysis and background on S. 1 and the hyper-controversial bill it includes, the “Combating BDS Act” (CBA), see:

  • coverage in the January 11th edition of the Round-Up
  • my op-ed this week in the Foward, “BDS is a Trap for Democrats.
  • my fact-check of AIPAC’s “FAQs” in support of the bill
  • analysis from the ACLU and others of the CBA and the brazenly unconstitutional state laws the CBA supports,
  • my compendium of resources on the constitutional issues with and legal challenges to (so far) with the state bills
  • My  op-ed  explaining how the free speech exception politicians are backing for Israel  is creating a template for a broader assault on the 1st Amendment .

 

Update on status of S. 1 - Senate State-of-Play

During the shutdown: Senate action on S. 1 was blocked by Democrats during the government shutdown, based on the argument that it was improper to be focusing on this while failing to first reopen the government . During that period, the GOP brought the bill to a vote 3 separate times, each time seeking “cloture” (literally “closing” initial debate to allow consideration of a measure to go forward - on controversial measures, a cloture vote often represents a vote on the bill itself, since without cloture a bill is stopped), using each vote, and Democrats “no” votes” as fuel to attack Democrats for not supporting Israel.

  • The: first cloture vote was on January 8, and was defeated 56-44, with “yes” votes from all GOP Senators present (except, for some reason, McConnell, according to the official vote count) plus four Democrats -- Jones (D-AL), Manchin (D-WV), Menendez (D-NJ) and Sinema (D-AZ).
  • The second cloture vote was on January 10, and was defeated 53-43, with all GOP senators present voting “yes,” along with the same 4 Democrats as the Jan 8 vote.
  • The third cloture vote was on January 14, and was defeated 50-43, with all GOP senators present voting, plus Jones, Manchin, and Sinemana (Menendez switched to “no” this time.

After the shutdown: After the government was reopened, GOP leadership has made S. 1 the first item on the agenda. Since that time, there have so far been two key votes on S. 1 - another cloture vote (allowing the bill to be considered) and a vote on a motion to proceed (allowing opening actual consideration/amendments).

  • On January 28, McConnell called a fourth cloture vote. This time, Democrats could not hide behind the issue of timing and had to take a vote based on their actual feelings about S. 1, including the CBA. That vote passed by 74-19. All GOP members present voted “yes.” The 19 Democrats who voted no were: Baldwin (D-WI), Brown (D-OH), Carper (D-DE), Durbin (D-IL), Feinstein (D-CA), Gillibrand (D-NY), Heinrich (D-NM), Hirono (D-HI), Kaine (D-VA), Leahy (D-VT), Merkley (D-OR), Murphy (D-CT), Peters (D-MI), Reed (D-RI), Sanders (I-VT), Shaheen (D-NH), Udall (D-NM), Van Hollen (D-MD), Warren (D-MA). Not voting were: Booker (D-NJ), Harris (D-CA), and Schatz (D-HI).
  • On January 29th, McConnell put forward a motion to proceed. That vote passed by 76-22; voting “no” this time were Baldwin (D-WI), Booker (D-NJ), Brown (D-OH), Carper (D-DE), Durbin (D-IL), Feinstein (D-CA), Gillibrand (D-NY), Harris (D-CA), Heinrich (D-NM), Hirono (D-HI), Kaine (D-VA), Leahy (D-VT), Merkley (D-OR), Murphy (D-CT), Peters (D-MI), Reed (D-RI), Sanders (I-VT), Schatz (D-HI), Shaheen (D-NH), Udall (D-NM), Van Hollen (D-MD), Warren (D-MA) - meaning all Democratic contenders for the nomination for president in 2020, except for Klobuchar (D-MN).

Consideration of S. 1: The Senate considered S. 1 on the Senate floor all week, and will continue to do so into next week. January 31 consideration is here; January 30 is here (basically grandstanding).

Amendments: With a motion to proceed adopted, we are now dealing with amendments. And given the nature of this bill, it should surprise nobody that it has become a legislative Christmas tree, with members trying to hang all sorts of ornaments - amendments large and small - on it. Key Middle East-related amendments (so far) are listed below. Not all will be considered, but it is smart to pay attention to this kind of floor exercise, since it is generally a good indication of what will be coming up again. Note that a number of these amendments appear to be working  to tweak the CBA in order to make the case that the bill is not giving cover to unconstitutional laws (the tweaks don't actually achieve that, but will be framed as if they do). Text of amendments in the Congressional Record is here, here,  and here)

  • McSally (R-AZ) has offered an amendment (SA 59) intended to make it US policy that add Ex-Im bank should deny applications for credit in the service of …opposing boycotts of Israel or settlements.
  • McSally (R-AZ) has offered an amendment (SA 60) to encourage/support US states imposing sanctions on Iran
  • Kennedy (R-LA) has offered an amendment (SA 61) inserting a new title (a whole new section) into the bill, entitled “Authorization for Use of Military Force in Defense of the Kurds in Syria Resolution of 2019” (content is exactly that).
  • Kaine (D-VA) has offered an amendment (SA 62) stripping out the conflation of Israel and settlements in the Combating BDS Act (an improvement in terms of foreign policy but not a fix in terms of free speech)
  • Lee (R-UT) has offered an amendment (SA 64) to change CBA framing from acts intended to penalize Israel etc, to acts that penalize Israel etc (intent removed - this could make impact broader or more limited, depending how you interpret it).
  • Toomey (R-PA), Van Hollen (D-MD) & Shaheen (D-NH) offered an amendment (SA 66) requiring a report on US Policy in Syria.
  • Graham (R-SC) has offered an amendment (SA 67) requiring the DNI to submit a report on the net worth and assets of Crown Prince Mohammad Bin Salman.
  • Inhofe (R-OK) has offered offered an amendment (SA 68) calling on the African Union to accept Israel’s request for observer status
  • Menendez (D-NJ) & friends have offered an amendment (SA 69), a new title “the Saudi Arabia Accountability and Yemen Act of 2019”
  • Cornyn (R-TX) & friends have offered an amendment (SA 76), to insert a new title into the bill, the "Iranian Revolutionary Guard Corps Economic Exclusion Act” (new Iran sanctions)
  • Peters (D-MI) has offered an amendment (SA 77) seeking to clarify that the CBA is only giving cover to state laws targeting companies with 50 or more employees (seeking to get around accusations that these bills violate the free speech rights of individuals - which, of course, is only part of the free speech problem)
  • Booker (D-NJ) has offered an amendment (SA 78) clarifying that the CBA does not apply to state laws that target sole proprietorships (seeking to get around accusations that these bills violate the free speech rights of individuals - which, of course, is only part of the free speech problem)
  • Kennedy (R-LA) has offered an amendment (SA 79), to introduce a new title, “Promotion of Peace and Security for Kurdish Allies in Syria”
  • Sullivan (R-AK) has offered an amendment (SA 80), adding a Sense of the Senate condemning Iran for supporting militant groups that threat the US and its strategic partners
  • Blumenthal (D-CT) offered an amendment (SA 81) relating to the US commitment to the resettlement of Syrian refugees, of which Jordan has absorbed a disproportionate share.
  • Sasse (R-NE) offered an amendment (SA 83) requiring a report on the impact of intelligence collection and risk to US citizens in the event of a withdrawal of US forces from Syria
  • Kennedy (R-LA) has offered an admt (SA 88), to authorize the president “to undertake military assistance and use of armed forces, if the President determines it necessary and appropriate, to defend the Kurds in Syria against armed aggression from any country or terrorist organization.”
  • Lee (R-UT) has offered an amendment (SA 89), stating that “Nothing in this title may be construed as an authorization  for the use of military force.”
  • Peters (D-MI) offered an amendment (SA 93) seeking to clarify that the CBA is only giving cover to state laws targeting contracts worth more than $1 million (seeking to get around accusations that these bills violate the free speech rights of individuals - which, of course, is only part of the free speech problem)
  • Peters (D-MI) offered an amendment (SA 94) to delete a section of the CBA entitled, “Disclosure in Contracting Measures (a section that represents a particularly egregious violation of free speech, but whose deletion will no remedy the overarching free speech violations to which the CBA seeks to give cover)
  • Merkley (D-MA) offered an amendment (SA 95) seeking to add to the bill a sense of Congress in support of humanitarian and security funding for the West Bank and Gaza (a provision that ignores the fact that at this point, ATCA has created a situation in which the Palestinian Authority cannot accept such funding, even if the Trump Administration decides to provide it).
  • Menendez (D-NJ) offered an amendment (SA 96) to McConnell’s amendment (SA 65), clarifying that “Nothing in this section shall be construed as a declaration of war or an authorization of the use of military force.”
  • Risch (R-ID) offered an amendment (SA 97) clarifying the deadline for a report on establishing an enterprise fund for Jordan.
  • Risch (R-ID) offered an amendment (SA 98) clarifying the form of a report on US-Israel cooperation with respect to countering unmanned aerial systems.
  • Toomey (R-PA) offered an amendment (SA 99) to require a report on Syria
  • Gardner (R-CO) offered an amendment (SA 100) to add a new title to the bill, “Cybersecurity sanctions with respect to Iran”

For Democratic statements on S. 1 (pro and con) see Section 4, below.

 

3. Hearings

Nothing on the schedule.

 

4. On the Record

Democrats on the Record Opposing S. 1/Combating BDS Act

Van Hollen (D-MD): Truly epic floor statement read here; watch here

Merkley (D-OR): “…peaceful protest has long been recognized as a protected form of free speech under the First Amendment, and any laws that limit individuals’ or companies’ ability to participate in peaceful dissent represent a dangerous path.  We don’t need to agree with the BDS movement or its goals to believe that the government shouldn’t be using its authority to squelch expression it disagrees with.”

Baldwin (D-WI): “I have always opposed BDS activities and will continue to do so. I support security aid to Israel and Syria sanctions, but #S1 overturns 50 years of bipartisan US policy and threatens a peaceful two-state solution to the Israeli-Palestinian conflict.”

Sanders (I-VT): “While I do not support the BDS movement, we must defend every American’s constitutional right to engage in political activity. It is clear to me that this bill would violate Americans’ First Amendment rights.”

Murphy (D-CT): “I don’t support BDS. I don’t support forcing public employees to sign loyalty pledges to anyone in order to do their job. I don’t support allowing Republicans to politicize support for Israel by pushing needlessly divisive bills. None of these are inconsistent w each other.”

Carper (D-DE): “…This bill is a solution in search of a problem. The Combating BDS Act of 2019 would ensure that Congress does not pass a law that keeps states and local governments from divesting from entities that engage in political or economic boycotts of Israel and Israeli settlements. However, Congress has never attempted to pass such a law. What’s more, we already have a law on the books that protects a person or entity’s right to make their voice heard through political and even economic boycotts: the First Amendment to the United States Constitution. A number of states already have anti-BDS measures on the books, and challenges to those measures on First Amendment grounds are working their way through the courts. Rather than attempting to preempt that process here in the Senate, it is my sincere hope that this controversial measure can be taken out of this package so that we can debate the merits of the bipartisan Strengthening America’s Security in the Middle East Act on its own."

Leahy (D-VT) 1/14: S. 1 - “also includes the boycott, divestment, sanctions legislation. This is an open violation of our First Amendment. It would give up Federal authority over matters of foreign policy to our State and local governments. I might not like a particular boycott, but the right to boycott is fundamental. Just pick up any one of our books about the U.S. civil rights movement and wonder if Martin Luther King and others would have been successful if they had not been allowed to have boycotts. It is not up to the government to pick and choose which boycotts citizens should support or oppose.

Feinstein (D-CA) 1/8: (Long statement worth watching/reading in full) Excerpt – “…I will always support a free and democratic Israel as the homeland of the Jewish people. That is why I have always voted to provide Israel the security assistance it needs. However, my unwavering support for Israel does not override my support for Americans' constitutional rights. The right to free speech is the foundation of American democracy. Any legislation that encroaches on that foundation should be considered with great caution. I don't believe that has been the case here. Federal courts have already ruled against similar laws regarding boycotts of Israel enacted by Arizona and Kansas.  In Kansas, the State legislature passed a law in 2017 requiring any individual or company that contracts with the State sign a certification that they are not participating in a boycott of Israel. In Arizona, State law requires any company that contracts with the State to certify that it is not engaged in a boycott of Israel and that it will not do so in the future. Federal courts in both States found that these laws raised substantial First Amendment concerns by infringing on individuals' right to political expression and issued preliminary injunctions blocking their enforcement. Given the courts' rulings in Arizona and Kansas, I fail to see why supporters believe this legislation can be considered constitutional.”

 

Democrats on the Record Supporting S. 1/Combating BDS Act

Coons (D-DE) 1/29: “I acknowledge and appreciate the wide array of opinions on this legislative package among Delawareans and advocacy groups focused on BDS. But I also recognize that, too often, Israel’s opponents use the BDS movement to delegitimize Israel. I oppose the BDS movement, and I believe it is critical that the United States support the economic stability and political independence of Israel. To that end, I support this bill because it prevents efforts to stifle legitimate business activity between American and Israeli companies.”

Cortez Masto (D-NV) 1/28: “I oppose elements of the BDS movement that seek to delegitimize Israel. I also have concerns about free speech issues that have been raised with the current form of this legislation, which is why I hope that this bill can continue to be improved through further congressional debate and input from the House of Representatives.”

 

General

Foxx (R-NC) and Zeldin (R-NY) 1/29: Reiterating their unshakeable, unconditional support for Israel and bashing Democrats – and specifically some new Democrats in the House – as anti-Israel (and demanding a vote on Zeldin’s resolution bashing them)

Wilson (R-SC) 1/29: Celebrating Holocaust Memorial Day, “…The American people stand with Israel as proven by the embassy being established in Jerusalem where I led the House delegation May 14.”

Cotton (R-AR) 1/25: Cheering ruling by AR federal judge against case challenging anti-free speech/BDS law, calling for Senate to pass S. 1 (“Congress now has the opportunity to build on this pro-Israel victory by passing the Strengthening America's Security in the Middle East Act of 2019 (S.1). This bill would authorize continued military aid to Israel while protecting states like Arkansas that are combating the BDS movement.”)

Gohmert (R-TX) 1/17: “Anyway, Israel, walls work, fences work, those barriers work. And I think this is a lovely wall and fence.”

Babin (R-TX) 1/17: Babin Seeks to Block Rashida Tlaib Trip to Palestine [note that the letter refers twice more to the place Tlaib wants to visit as Palestine - a screenshot has been taken, just in case that changes; a pdf of one of the letters Babin sent to House leaders making his case is here]

Grothman (R-WI) 1/16: “I look at the border wall that Israel built when they were having a huge problem of people coming up into Africa and breaking the law by coming into Israel. Israel was getting about 1,800 new people a year coming into their country that they didn't think should be coming into their country. How many people came into their country in the last year? None. That border wall caused the number of people coming into Israel to drop from 1,800 a year to nothing.”

McConnell (R-KY) 1/16: Accusing Senate Democrats of not being interested in supporting Israel (for not passing S. 1)

McConnell (R-KY) 1/15: Bashing Dems for note passing S. 1 and suggesting they are playing politics with support for Israel

Wilson (R-SC) 1/14: Praising European Sanctions on Iran (and calling for more)

 

 

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