California’s months-long debate over a bill against the boycott, divestment and sanctions (BDS) movement may finally be drawing to a close. To the chagrin of Palestine solidarity activists, the California State Senate is set to consider legislation, possibly this week, that would require state contractors to certify that a boycott of Israel they were engaged in does not violate laws against discrimination.
Activists who have spent much of the year fighting against the bill fear that the Senate will pass the bill. Then, it will go back to the Assembly, where it is also expected to pass, before being sent to Governor Jerry Brown. Pro-Israel and pro-BDS groups have poured resources into the fight in California, the most populous state in the country and a center of heated debate over boycotting Israel.
California is the latest state to consider legislation targeting the BDS movement, which advocates boycotts of Israeli products, divestment from firms doing business with Israel and government sanctions because of Israeli human rights abuses.
Twelve states have enacted anti-BDS laws, which bar state contracts from going to companies that boycott Israel, or bar pension funds from investing in such companies. Palestine solidarity activists and legal advocates say that the bills, by punishing a form of political action, run afoul of the First Amendment and are aimed at intimidating boycott activity.
California’s bill has been debated longer than many other states, in part because BDS activists and civil liberties advocates have lobbied hard against the bill and pointed to its implications for the First Amendment.
The legislation has gone through multiple amendments, and looks different today than the original proposal. In February, Assemblymember Richard Bloom, a Democrat representing Santa Monica, introduced the “Combating the Boycott, Divestment, and Sanctions of Israel Act of 2016.” That bill sought to bar state contracts worth over $10,000 from going to entities that boycott Israel. The American Civil Liberties Union of California told Bloom in a letter that the bill “would penalize constitutionally-protected political speech.”
But as the Jewish Journal reported, by late May, Bloom himself didn’t support the bill’s language after a Democratic-controlled Assembly committee stripped out all references to Israel, removed the language on contracts and instructed the attorney general to formulate “a list of companies that have engaged in discriminatory business practices in furtherance of a boycott of any sovereign nation or peoples recognized by the government of the United States.” It also directed the attorney general to see if it would be Constitutional to bar companies on the list from obtaining contracts.
But Bloom now seems to have landed on language palatable to his colleagues. On June 2, the Assembly passed a version of the bill requiring that any person who wants a contract worth over $100,000 has to “certify” under “penalty of perjury” that any policy against Israel is not discriminatory. (The law applies to “any sovereign nation or peoples recognized by the government of the United States,” but Israel is the only country specifically named.)
“It is the intent of the Legislature to ensure that taxpayer funds are not used to do business with or otherwise support any state or private entity that engages in discriminatory actions against individuals under the pretext of exercising First Amendment rights,” the bill reads. “This includes, but is not limited to, discriminatory actions taken against individuals of the Jewish faith under the pretext of a constitutionally protected boycott or protest of the State of Israel.”
The new version has angered Palestine solidarity activists, who want Governor Brown to veto the bill when it comes to his desk.
“Now they’re making the law look like it’s to fight discrimination, but really it’s to stifle debate and stigmatize those who engage in boycott of Israel,” said Estee Chandler, chapter leader for the Los Angeles chapter of Jewish Voice for Peace. Jewish Voice for Peace has joined in coalition with about two-dozen other groups to lobby against the legislation.
David Mandel, an attorney and member of the Sacramento chapter of Jewish Voice for Peace, told Mondoweiss that in some respects, this current bill is worse than previous ones. That’s because the current version forces entities to “certify” under “penalty of perjury” they are not violating California’s anti-discrimination laws. Committing perjury is a felony in California.
“It’s another method of trying to intimidate people and scare them,” said Mandel.
That provision might backfire, though. An analysis of the bill by the Senate Appropriations Committee raised the possibility that contractors may not want to bid if they have to certify, under penalty of perjury, that they are not discriminating against Israel or other sovereign nations. That could result in “major future increase in ongoing operating costs due to higher contract costs…resulting from the exclusion of otherwise qualified bidders.” While the committee did not give an exact estimate of the costs of the bill, they noted an increase of .5% to “to overall contract costs would result in increased costs to the state of about $140 million.”
Pro-Israel groups, however, have shown no hesitation in supporting the bill. The Israeli-American Council, a group co-founded and funded by real estate magnate Adam Milstein, has pushed hard for the bill.
Pro-Israel groups have particularly focused on California in recent years. University of California campuses are a hotbed of debate over Palestine and BDS; at least eight student governments have passed resolutions calling for UC to divest funds from companies that supply the Israeli military. This week, the Los Angeles Times and the Guardian reported that casino magnate Sheldon Adelson provided the funding for posters put up by David Horowitz on six California campuses that labeled student activists as “Jew Haters” who are allied with “Palestinian terrorists.”
Jewish Voice for Peace’s Chandler said the political muscle of pro-Israel organizations is a key reason why the anti-BDS bill has gained traction in California. She said that in informal settings, some members of the California Legislature say they want the bill to go away.
“The younger, more progressive members–they know what’s going on,” said Chandler. “And yet, it’s a career gamble for them” to oppose the bill.