How US states are countering the BDS movement against Israel

"Israel for America is a point of American patriotism."

Rep. Alan Clemmons delivers an address from the steps of the South Carolina Statehouse in a speech given via satellite to the Restoring Courage rally in Jerusalem in 2011 (photo credit: Courtesy)
Rep. Alan Clemmons delivers an address from the steps of the South Carolina Statehouse in a speech given via satellite to the Restoring Courage rally in Jerusalem in 2011
(photo credit: Courtesy)
It could be said that the impressive success story of the 12 US states using their laws to counter the Boycott Divestment and Sanctions (BDS) campaign against Israel started in the living room of South Carolina state legislator Alan Clemmons.
The Jerusalem Post recently interviewed Clemmons and two other leading figures in the effort to counter BDS at the state level.
Clemmons recounted a speech by US President Barack Obama in spring 2011 that he was watching on television. In his view, the speech called for “the division of Israel and for divorcing itself from Judea and Samaria.” But Clemmons considers these lands “the heartland of Israel.”
He remembered being upset that this was presented as “the will of the American people.”
“So I turned to my wife and said ‘Laura, the Americans I know don’t want that for Israel.’” The legislator said that he “stewed over it that following weekend and sat down and drafted a resolution based on biblical reasoning that Israel is not the occupier of anyone’s land.”
He stated that he had believed that the South Carolina Democrats would defend Obama and that Republicans would take issue with his speech. “To my surprise, the Democrats responded by cosponsoring a resolution, partnering with Republicans and passing it unanimously in both the South Carolina House and Senate,” he said.
Calling that vote “a cathartic experience,” Clemmons said it “painted a picture to me that Israel is not a Republican issue and not a Democratic issue in the US. Israel for America is a point of American patriotism.”
His next stop toward becoming one of the leaders of legislation curtailing BDS was an invitation from the Knesset. Israeli lawmakers, who had heard about the South Carolina resolution, invited Clemmons to speak at the Knesset’s inaugural meeting of the caucus against antisemitism.
From there, Clemmons became part of a network of legislators across the US who “feel as I do about Israel.”
In 2013, he was on his second visit to Israel with his wife and the Christian Allies Caucus, a group focused on strengthening cooperation between Christians and Israel, when he met a man who was considering how to expand his company, AL Solutions.
The company manufactures automotive filters and exports them to South Carolina.
The man explained to Clemmons how BDS was impacting his company in Europe.
He hoped that the campaign “would never bear fruit in the US.” Then in 2014, Clemmons led a group of South Carolina legislators to Israel on an economic development visit for marrying venture capital with new technologies.
“I planned as part of that visit a trip to AL Solutions. We visited their headquarters in Ashdod and, during that visit, the CFO of the company explained how BDS was impacting their company,” Clemmons said.
He added, “AL Solutions had just opened a new facility in South Carolina with over $3 million in capital investment and we wanted to invite further investment in South Carolina.”
Company executives explained that “they do have plans for expansion, but that they had to put them on hold because of the closure of a facility in Brussels,” brought on by the effects of BDS, noted Clemmons.
Showing some irritation, the otherwise low-key Clemmons said: “It occurred to me that BDS had just had a financial impact on my home state of South Carolina, resulting in an inability of AL Solutions to do more private investment in my state.”
He then discussed BDS with his fellow legislators and with Joseph Sabag, the executive director of the Israel Allies Foundation, which works with legislators around the world on Israel and Middle East issues.
However, Clemmons recalls that a real breakthrough came “later on that trip when we had the opportunity to meet Prof. [Eugene] Kontorovich during a dinner at a winery.
“Here was one of the bright minds in the world... on addressing BDS under the US Constitution,” he explained.
By June 2015, South Carolina was leading the way with legislation targeting BDS, along with Illinois. Following South Carolina’s lead, Alabama, Arizona and other states discussed the same or similar proposals.
In total, as of now, 12 laws or executive orders (New York’s governor issued an order instead of passing a state law) have gone into effect. Though they deal with BDS along similar lines, there are some differences.
Describing the South Carolina version, Clemmons stated that “the law is broader.
It does not mention Israel. It prohibits those who engage against trade based on national origin, against our allies and against the state of South Carolina.” Those who interfere with trade in such ways are barred from getting government contracts.
Clemmons, who himself was already chairman of the South Carolina House of Representatives Judiciary Committee, returned home with 13 supportive legislators.
This was a strong group of allies, but he said that the rest of the legislature did not need to be lobbied as most of them “see Israel as South Carolina’s best friend.”
With a heavy southern accent, he said that many South Carolinians have a “South Carolina stands with Israel” car license plate and have passed resolutions regarding other Israel and Middle East issues.
Where did the idea for such legislation come from? Kontorovich teaches at Northwestern University Law School and works for the Kohelet Policy Forum in Israel. The articulate and confident professor explained that prior to the legislative efforts countering BDS, he was mostly “just an academic” dabbling in foreign policy issues.
Clemmons and Sabag contacted Kontorovich, asking him if he had ideas for combating BDS, a symptom of what they all viewed as underlying antisemitism.
Kontorovich was impressed that the initial groundswell of support was from South Carolina’s non-Jewish legislators.
Explaining his concept for the legislation which gained ascendancy, he said: “a state does not have to use its funds with those they view as involved in discriminatory activities.”
By analogy, he said his concept was similar to “not having to contract with people who boycott gays and lesbians or [to contract with] the genocidal regime in Sudan.”
The key to avoiding constitutional challenges, noted Kontorovich, was that “these laws do not ban any kind of BDS activity, but rather restrict public money from supporting boycotting companies.”
He also slammed those criticizing the laws as violating the US First Amendment’s free speech principles, but who also support laws penalizing LGBT discrimination in violation of the First Amendment.
Homing in on the controversial differences between the boycotts of Green Line Israel and boycotts of only West Bank Jewish settlements, Kontorovich argued that even as one state (Colorado) targeted only Green Line Israel, that the overwhelming trend (eight out of nine states whose laws focus on Israel) is not to draw a distinction.
Some supporters of counter-BDS legislation also feel California’s law on the issue is weaker than they would have wished.
“Liberal states like New Jersey and Iowa send a message” by targeting boycotts of both Green Line Israel and the settlements because they “understand that while Israelis live and work in these places, discrimination against them because of nationality is the same as discrimination within the Green Line or other kinds of pernicious discrimination,” Kontorovich said.
In terms of how broad the success has become since Kontorovich first gave South Carolina the legislative solution, he said: “I am not surprised by the success... There is a narrative heavily peddled that America and the Democratic party are turning away from Israel.
“If you tell a story about the world enough, it can be a self-fulfilling prophecy.
But it is not true now. It does not describe the grass roots. If you reach beyond Washington DC where it is hard to get things done, there is vast bipartisan support for Israel,” he added.
Explaining how South Carolina and Illinois’s legislative successes in combating BDS spread to 10 other states in about a year and a half, he said these initiatives often go in waves. “States look to see what other states are doing... like with LGBT anti- discrimination laws.”
At the same time that there has been a legislative wave or domino effect that has impacted several states, Kontorovich candidly admits that neither he nor the South Carolina legislators had any connection to combating BDS legislation in Illinois. That effort, he explained, focused on divesting from pension funds connected to BDS.
“It was a totally separate effort. I had no idea about those efforts. It shows how non-conspiratorial the Zionist conspiracy really is,” he said.
Kontorovich also analyzed the “different trade-offs” of the varying laws for combating BDS.
Like Clemmons, he noted that the South Carolina model does not mention Israel, whereas the Illinois model is Israel/ BDS-specific. “It simply depends on how much one wants to focus on Israel or throw a broader net.”
He said that states have varying degrees of internal freedom on each issue and some have state-specific reasons for not touching policy in one area or favoring it in another.
He also pointed out that Florida’s and Iowa’s laws for countering BDS involve both the pension and contracting bans.
Kontorovich said that he offered different degrees of assistance in drafting legislation depending on each state’s needs. The anti-BDS laws in Florida, Iowa, New Jersey and other state legislatures are now based on existing, well-developed laws.
Pressed about whether there were any battles over the anti-BDS laws, Kontorovich said that “if you look at the votes, they have been absolutely lopsided in every case – this is not something you need to ‘sell’ to the American people.”
Questioned about whether the success in fighting BDS at the state level was only a part of the bigger story in which BDS is steadily gaining supporters at universities, Kontorovich demurred.
“The BDS win rate on college campuses compared to the proportions of attempts to pass BDS is close to zero. In a lot of places sentiment is turning against it,” Kontorovich said, adding that “college campuses are not an accurate microcosm of American life.”
Joseph Sabag and the Israel Allies Foundation is one of the other key elements to the success story. His foundation provides resourcing, networking and an umbrella for the legislative efforts. Sabag himself gives the impression of someone who thrives on juggling many complex undertakings at once.
He said that Clemmons and others began expressing BDS concerns to him a few years ago, and that once disagreement over the Iran deal subsided, they had expressed an interest in doing something “more than just symbolic” to combat the campaign.
Discussing Kontorovich’s concept, he stated: “Eugene had a very innovative idea which treated BDS as commercial activity with no effect on private conduct and no First Amendment implications.”
He credited Clemmons with wanting “South Carolina... to be the laboratory.”
Sabag said that the ban on pension funds investing in BDS groups came naturally from legislators. They questioned why they would ban contracting with a group, but continue to invest in pension funds connected to it.
He described his main goals as “the uniform expression of law in as many states as possible,” saying “we did not want a patchwork.” He explained that the messaging surrounding these policy efforts had to be consistent in terms of the First Amendment and based on economic considerations.
“There were a lot of ways to get this wrong and few ways to get it right.”
Though usually getting Jewish organizations to work together is a major challenge, Sabag remarked that “getting some major players around the table wasn’t hard because Eugene [Kontorovich] came up with something so palatable. It was a matter of letting everyone do their best when they are at their best.” He complimented Stand With Us, the Jewish federations and the Israel Project on their collaboration.
What do Clemmons, Kontorovich and Sabag expect for the future of legislation countering BDS? Kontorovich noted that legislation has already been introduced for debate in Ohio and Pennsylvania. He predicted that another five to 10 US states would add laws combating BDS. Sabag was far more optimistic, predicting another 15 to 20 states would sign on by next summer.
Clemmons thought that within three to four years, most of the country would have laws on the issue.
Sabag was also optimistic that a federal bill on the issue might be possible at some point, though everyone agrees that is a much more complex effort.
Sabag concluded that, “Overall it’s a success story for the pro-Israel community. I would like to think what we did here is a model for how the pro-Israel community treats other high priority issues in the future. We do not need to be worried just about chasing down dollars, we can work together and can provide very good outcomes.”