Let’s get this out of the way up front:
The Boycott, Divestment, and Sanctions movement (BDS) is an immoral, anti-Semitic, dishonest campaign intended to isolate and delegitimize Israel under the guise of moral obligation. Its leaders portray Israel as the world’s greatest offender of human rights through the powers of an imperialist, apartheid, and genocidal state against a downtrodden and defenseless people. Sponsors of the movement (and grave human rights offenders) — Iran, Syria, North Korea, and terrorist entities such as Hamas — demonize the Jewish state. Anyone who disputes these facts is either lying or woefully ignorant of the truth.
And yet, as much as I appreciate the spirit of NJ’s law punishing companies that engage in BDS, well…I have my reservations about it.
The law is at the center of our increasingly contentious gubernatorial race between Phil Murphy (D) and Kim Guadagno (R), the current lieutenant governor under Gov. Chris Christie.
Republicans have slapped “anti-Israel” charges on Murphy’s candidate for lieutenant governor, Assemblywoman Sheila Oliver (D-Dist. 34), for being one of three N.J. lawmakers to vote in 2016 against the bill that banned the state from investing public pension funds in companies that boycott Israel. Although Murphy has refused Guadagno’s call for him to drop Oliver, the former U.S. ambassador to Germany acknowledged that he disagreed with his running mate’s position.
Now for a second point of clarification: This discussion is not politically motivated; NJJN will not endorse a candidate. The burning question is, should opponents of state and federal anti-BDS legislation be flagged as anti-Israel?
“If you’re asking me if I’m upset from a Jewish communal perspective with someone who votes against anti-BDS legislation, you bet I am,” said West Orange resident Mark Levenson, a Newark-based attorney and longtime chair of the NJ State Association of Jewish Federations. “If there were 70 votes for it and you’re one of the three who voted against it, I have a problem with that.”
New Jersey and at least 20 other states have established anti-boycott laws in the last few years, and there is legal precedent for it. In the 1970s the Export Administration Act (EAA), under the U.S. Department of Commerce, was enacted to discourage, or in some instances prohibit, companies from participating in the Arab League’s boycott of Israel.
The EAA’s reasoning appears sound: American companies must disclose if they have been pressured by a foreign entity not to do business with Israel, and they cannot make decisions based on these threats. Otherwise foreign entities could effectively use American companies to influence governmental policies that are opposed by the United States.
The EAA also protects American corporations — a foreign government can’t threaten to take its business elsewhere for not complying with the boycott if the American company is legally prohibited from participating.
While I have no way of knowing if Oliver harbors ill will toward Israel, I don’t believe her June 2016 vote against the bill, S1923/A925, is any indication of what evil does or does not lurk in her heart. On the contrary, I reluctantly acknowledge that the American Civil Liberties Union (ACLU), which has opposed most iterations of the legislation on the basis of free speech, makes a decent case.
Take the example presented by Alexander Shalom, a senior staff attorney for ACLU-NJ: Two companies choose to purchase dates from Jordan over Israel, one because it believes Jordanian dates taste better than Israeli dates, and the other because it disapproves of the government’s treatment of the Palestinian people. The NJ pension fund will only divest from the second corporation.
“Only the company that did so for political reasons is punished,” Shalom told NJJN. “That is the essence of punishing political speech.”
Any proud American should feel uneasy about a threat to the First Amendment, but, for me at least, that reasoning is easy to get around. BDS is an anti-Semitic campaign. Using Freedom of Speech as a defense against spreading lies and hate is a perversion of the Constitution. Because BDS is discriminatory, companies that refuse to do business with Israel are doing so based on reasons related to bigotry, not political viewpoints.
“To wrap yourself in the mantle of free speech, I don’t buy it,” Levenson said. “I don’t accept it and I’ll never accept it.”
Personally, I’m more troubled by how NJ determines if a company is in violation of its anti-boycott laws. The wording of the legislation is vague. To identify companies that boycott Israel, the efforts of the State Investment Council, which oversees the NJ pension fund, include “reviewing and relying on publicly available information regarding companies”; “contacting other institutional investors that have divested from companies that boycott Israel”; and “retaining an independent research firm to identify companies that boycott Israel.”
That seems like a formula for an inexact and subjective science. Compared to the stringency of mandated national reporting under Export Administration regulations, NJ law is not cut and dry.
“Often what we have to do is intuit what a company is doing based on the statements of its officers and employees,” said Shalom, who lives in South Orange. When that happens “we are looking at board members’ Facebook pages and their political donations, and that’s an extra level of the government butting its nose into people’s opinions and beliefs.”
Levenson said that’s an oversimplification of the law.
“It’s not just as simple as saying ‘XYZ companies have boycotted Israel so let’s sell stock tomorrow,’” he said. The State Investment Council must “make sure there’s legitimate basis for selling the stock or excluding them from the portfolio.”
It’s not as if there’s no recourse for a company that’s been accused of participating in BDS. Just last month, Jacob Toporek, executive director of the State Association of Jewish Federations, urged the Investment Council to divest state funds from a Danish bank that the Association accused of refusing to do business with two Israeli defense companies.
“If a company thinks we’re making this up and divining up what they’re thinking, they can challenge it and the state can determine whether or not they’re boycotting Israel,” Levenson said.
That said, he added, “I don’t think we need to make this legislation so overly detailed such that it will end up not applying to any company.”
That’s a fair point, but so are those raised by the ACLU. Would I have voted for the anti-boycott legislation had I been in the State Assembly? Probably. The mere thought of giving the impression that I support BDS makes me nauseous.
Still, the law is not perfect, and I reject it as a litmus test on support for Israel, whether it’s Oliver; Sen. Cory Booker (D-NJ), who voted against federal anti-BDS legislation in August; or the ACLU, which filed a federal lawsuit challenging a similar law in Kansas.
As a final display of my deep opposition to BDS, I give Levenson the last word:
“You can boycott Israel. That’s your choice,” he said. “But if you do, we will look to have NJ disinvest in you.”