A Poison Pill for AIPAC

by Mitchell Plitnick

Today, I’m asking my readers to please support the American Israel Public Affairs Committee (AIPAC). The group has been working hard on some new legislation and it’s really important to help get this bill to the floor of the Senate and the House.

According to a report in Buzzfeed, AIPAC has been working with congressional staff members for months on the bill, trying to find the formula for success. The bill would “…aim to prevent U.S. companies from participating in the (Boycott, Divestment and Sanctions against Israel) campaign without infringing on Americans’ First Amendment rights to political speech. It would also try to make the Transatlantic Trade and Investment Partnership being negotiated between the U.S. and E.U. conditional on whether the E.U. takes action to stop BDS.”

And how would they prevent US companies from participating in BDS? By “…authorizing states and local governments to divest from companies deemed to be participating in BDS,” and by denying “…federal contracts to such companies.” This bill should be at the top of the agenda for American activists in the United States who wish to see our country change its policies towards Israel and Palestine.

AIPAC hasn’t been doing very well of late. Their attempt to weasel a provision into another bill that would have allowed Israelis to enter the United States without a visa while Israel refused to make the same arrangement for US citizens raised a lot of hackles on Capitol Hill, even in some offices that are very AIPAC-friendly. The proposed provision was killed. AIPAC was unable to sway the Senate against the nomination of former Senator Chuck Hagel for Secretary of Defense. Nor has it been able to significantly impact the Obama administration’s efforts to reach an agreement with Iran on its nuclear program.

There have been a lot of failures lately, including the failure to get Congress to push hard for an attack on Syria last year. But this bill, if it ever reaches the floor, could be the biggest bust of all, with some serious ramifications for the powerful lobbying group.

Let’s just start with the First Amendment issues this raises. If this bill ever sees the light of day, AIPAC is going to try to convince people that it is similar to the laws passed forty years ago in response to the Arab League’s boycott of Israel. Put simply, it isn’t.

Those laws–the 1977 amendments to the Export Administration Act (EAA) and the Ribicoff Amendment to the 1976 Tax Reform Act (TRA)–were drawn up narrowly, to apply only in the case of abetting or cooperating with a boycott directed at Israel by other countries. The mentions of boycott “by a foreign nation” or similar words are so frequent that the meaning cannot be missed. This is no surprise, of course; Congress is loath to dictate to US businesses, and it is especially tricky where a national interest is not clearly and immediately at stake. So these laws were contrived so that they only barred supporting boycotts by foreign countries against Israel.

In the case of BDS, no government is running this program, not even the pseudo-governments of the Palestinian Territories. The Palestinian Authority (PA) has not endorsed boycotts of Israel and is, itself, completely incapable of boycotting Israeli goods and services. It is in most ways a captive market to Israel. Hamas has, frankly, paid little attention to such measures, though they have encouraged them rhetorically from time to time.

There is a call for BDS from Palestinian civil society, but that is not covered by the 1970s laws. Moreover, any law that would target BDS would need to be constructed in such a way so that it would not have made boycotts of Apartheid South Africa illegal. Those boycotts also came in response to a call from the African National Congress. If businesses could not engage in such activities, there would be great outrage.

So the Arab League boycott is moot as a basis for anti-BDS legislation. The right to boycott is also not limited by what the government decides is an acceptable boycott and what is not. People, and businesses, are free to choose with whom they will do business. Congress making such decisions violates the very essence of the First Amendment, and it is highly unlikely that such a law could pass as a result and, if it could, even less likely that it could withstand legal challenges.

The bit about the Transatlantic Trade and Investment Partnership (TTIP) is even more toxic. The point of TTIP is to make international trade between the United States and European Union easier, to reduce tariffs and lessen bureaucracy. The idea is to significantly improve the speed, and thus the volume and value, of trade between the two economic giants. Adding stipulations like ensuring that EU states are working against BDS is precisely what TTIP is designed to avoid. Whatever my own objections to TTIP (and they are many), it clearly holds great appeal for businesses on both sides of the Atlantic.

It is one thing for US citizens with influence in Washington to go along with the powerful lobbying forces defending Israel’s ability to act with impunity in the region; for the most part, that has not had a negative effect on trade. But this would be a very different matter. Now we are talking about AIPAC going up against powerful, domestic business interests. That is a whole new ballgame.

Even bringing the bill to the floor would demonstrate in a clearer way than ever before that AIPAC is willing to compromise US commercial interests and even one of the most cherished and basic freedoms the US prides itself on for the sake of Israeli interests.

Consider also that the overwhelming majority of boycott actions, divestment decisions and even popular proposals for sanctions against Israel have focused squarely on Israel’s occupation of the West Bank and Gaza. They have not targeted Israel as a whole, with the exception of some of the attempts at cultural and academic boycott. But these are not major concerns for Israel nor do they have the same impact potential as economic boycotts and divestment. So, the threat to free speech and to international trade that this bill represents would be demonstrably in the service of the settlement enterprise, the siege of Gaza and the occupation regime more generally. The mask would be off.

In reality, I very much doubt any such legislation is ever going to move forward, at least not from AIPAC. They know the problems as well as anyone and, while I don’t doubt that they are working constantly with their closest friends in Congress to see if something could work, I don’t think they’ll be successful. But if you want to see AIPAC suffer major damage, such a bill would do it. I can’t think of a better strategy to oppose AIPAC than to do everything we can to make sure this sort of doomed anti-BDS legislation hits the floor in Congress with a resounding thud.