*Brought to you in cooperation with Americans for Peace Now, where the Round-Up was born!
Shameless plug: On 2/7 I joined APN’s Ori Nir and Debra Shushan for new episode of APN’s PeaceCast, entitled, “The Anatomy of ATCA: How an overlooked bill became a destructive law.” It was a great discussion that I recommend highly — get it/listen to it here.
Proud note: David Klion, writing in the Nation, has published a fantastic profile of Matt Duss, formerly president of FMEP, and current foreign policy advisor to Bernie Sanders (I-VT).
(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.
***(UPDATE- NOT AN ATCA “FIX” BILL) HR 702: NOTE: Text was finally circulated this week and this does not appear to be in any way related to ATCA. As of this writing, efforts reporting continue to devise and gain consensus on tweaks that will “fix” ATCA. Listen to the podcast above for discussion of why this is such a difficult objective to achieve. ***
(US OUT OF YEMEN WAR) H. J. Res. 37: Introduced 1/30 by Khanna (D-CA) and now having 86 cosponsors, “Directing the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” Marked up by the House Foreign Affairs Committee on 2/6 (see Section 3, below, for details). Expected to be brought to the floor imminently. Khanna press release: Khanna fully confident Yemen WPR will pass in House, Senate following HFAC markup
(KSA ACCOUNTABILITY) S. 398: Introduced 2/7 by Menendez (D-NJ) and 7 bipartisan cosponsors, “A bill to support the peaceful resolution of the civil war in Yemen, to address the resulting humanitarian crisis, and to hold the perpetrators responsible for murdering a Saudi dissident,” aka, the “Saudi Arabia Accountability and Yemen Act of 2019.” PDF of bill text is here. Press release announcing intro of S. 398 is here. Menendez press release pre-introduction is here. Referred to the Committee on Foreign Relations. (All Actions)
(KSA TEXTBOOKS) S. 357: Introduced 2/6 by Rubio (R-FL), along with Wyden (D-OR) and Markey (D-MA), “A bill to require annual reports on religious intolerance in Saudi Arabian educational materials, and for other purposes,” aka, the “Saudi Educational Transparency and Reform Act, Referred to the Committee on Foreign Relations. Rubio press release (with comments from all three original sponsors) is here.
(YEMEN CERTIFICATION) Young-Shaheen letter: On 2/7, Senators Young (R-IN) and Shaheen (D-NH) sent a letter to SecState Pompeo expressing continuing concerns that “the previous Yemen certification submitted to Congress did not accurately reflect known facts on the ground. As such, any follow-on certification should take all evidence into account and succinctly demonstrate to the Saudi-led coalition that the American people and their representatives in Congress will not stand for the continued disregard of the security and humanitarian interests of the U.S.” Press release is here.
(NEED ANSWERS ON YEMEN) Warren letter: On 2/5 – in the run-up to the Senate Armed Services hearing detailed in Section 3, below – Senator Warren (D-MA) sent a letter to sent a letter to General Joseph L. Votel, Commander of U.S. Central Command (CENTCOM), seeking clarification and additional information regarding United States support to the Kingdom of Saudi Arabia and its coalition’s operations in Yemen. Press release is here.
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 and February 1st 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
On February 5, the Senate took a final vote on S. 1. The bill passed by a vote of 77-23. The “no” votes came from 1 Republican (Paul, R-KY), 1 Independent (Sanders, I-VT), 21 Democrats, including all but 1 of the Senators who are potential nominees in 2020 for president (the exception is Klobuchar, D-MN). Those 21 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), Markey (D-MA), Merkley (D-OR), Murphy (D-CT), Reed (D-RI), Sanders (I-VT), Schatz (D-HI), Shaheen (D-NH), Udall (D-NM), Van Hollen (D-MD), and Warren (D-MA).
As a reminder, past votes on the bill were as follows:
- January 8 cloture vote, 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).
- January 10 cloture vote, defeated 53-43, with all GOP senators present voting “yes,” along with the same 4 Democrats as the Jan 8 vote.
- January 14 cloture vote, defeated 50-43, with all GOP senators present voting, plus Jones, Manchin, and Sinema (Menendez switched to “no” this time).
- January 28 cloture 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).
- January 29th, motion to proceed. 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).
ACLU on passage of S.1: The ACLU’s statement on the passage of S. 1 is here – excerpt: “Today, the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans. We encourage each senator who voted for this bill to read the Constitution and understand the protections it affords individuals against the unconstitutional, McCarthy-era tactics this bill endorses. We also thank each senator who stood strong in defense of the First Amendment and voted against this bill. Should the House take up similar legislation, we urge it remove the Combating BDS Act from the package of bills due to the threat it poses to all Americans’ First Amendment right to boycott”
Amendments: As noted last week, given the nature of S. 1, it should surprise nobody that it became a legislative Christmas tree, with members trying to hang all sorts of ornaments – amendments large and small – on it. Key Middle East-related amendments offered as of Jan 31 were listed in the previous edition of the Round-Up. Amendments offered after Jan 1 are listed below. Amendments actually made in order and considered are discussed at the bottom of this section. NOTE: While almost none of the amendments offered to S. 1 were considered, as noted in last week’s Round-Up, it is it is smart to pay attention to amendments offered to bills like this, since they are often a good indication of what will be coming up again. Text of the amendments below can be found here.
- Paul (R-KY) offered SA 101, Reducing Foreign Aid to Offset Increased Assistance for Israel
- Paul (R-KY), Feinstein (D-CA), Leahy (D-VT), Sanders (I-VT), and Warren (D-MA) offered SA 102, to remove the Combating BDS Act from the bill altogether
- Peters (D-MI) offered SA 103, yet another amendment seeking to tweak the CBA to make it appear less objectionable on First Amendment grounds (exempting companies with 10 or fewer employees and sole proprietorships, and contracts valued at less than $100k). Peters made a statement on the Senate floor making clear that he believed that with this amendment, the CBA would no longer be objectionable. He also stated, “I am sending a letter to the House of Representatives explaining my concerns with title IV, and I encourage them to adopt the provisions of my amendment that I attempted to put forward today.” Sen. Stabenow (D-MI) spoke in support of the amendment in in agreement with the idea that if adopted the CBA would be unobjectionable, stating, “I am very disappointed that this [SA 103] will not be included in this bill. I will join Senator Peters in advocating in the House for this clarification and other changes that will make it very clear about an individual’s right to be able to have freedom of speech in all of its forms.”
- Cruz (R-TX) offered SA 104, to include support for initiatives aimed at a variety of things, including “participation of Israel, as appropriate, in crewed missions involving the International Space Station (ISS) and in other space exploration missions under the leadership of the United States;” and “development of partnerships between nongovernmental organizations and companies, the Administration, and the Israel Space Agency for human space exploration.”
- Cruz (R-TX) offered SA 105 – an amendment that among other things seeks to legitimize and direct U.S. funding of projects in settlements. The amendment supports continued NASA work with the Israel Space Agency, including through joint projects “in Israel and Israeli-controlled territories” to be funded through the United States-Israel Binational Science Foundation, the United States-Israel Binational Industrial Research and Development Foundation, and the Israel-United States Binational Industrial Research and Development Foundation. The amendment would also add a new section making it the policy of the U.S. “to partner with Israel in order to advance common goals across a wide variety of sectors…including through joint projects in Israel and Israeli-controlled territories to be funded through the United States-Israel Binational Science Foundation, the United States-Israel Binational Industrial Research and Development Foundation, and the Israel-United States Binational Industrial Research and Development Foundation.” The amendment authorizes USAID to enter in a Memorandum of Understanding with Israel “in order to enhance coordination on advancing common goals on energy, agriculture and food security, democracy, human rights and governance, economic growth and trade, education, environment, global health, and water and sanitation, including through joint projects in Israel and Israeli-controlled territories to be funded through the United States-Israel Binational Science Foundation, the United States-Israel Binational Industrial Research and Development Foundation, and the Israel-United States Binational Industrial Research and Development Foundation, with a focus on strengthening mutual ties and cooperation with nations throughout the world.”
- Kennedy (R-LA) offered SA 106, requiring a briefing “on strategy to mitigate adverse consequences of United States withdrawal from Syria on the safety of United States allies in Syria.
- Risch (R-ID) offered an amendment (SA 97) clarifying the deadline for a report on establishing an enterprise fund for Jordan. Agreed to by voice vote.
- Menendez (D-NJ) offered an amendment (SA 98 to SA 97) to provide for a classified annex to be submitted with the report on the cooperation of the United States and Israel with respect to countering unmanned aerial systems. Agreed to by voice vote.
- McConnell (R-KY) offered SA 65, to express the sense of the Senate that the United States faces continuing threats from terrorist groups operating in Syria and Afghanistan and that the precipitous withdrawal of United States forces from either country could put at risk hard-won gains and United States national security. Agreed to by vote of 70-26.
- Menendez (D-NJ) offered SA 96 to SA 65, to clarify that the amendment shall not be construed as a declaration of war or an authorization of the use of military force. Agreed to by voice vote.
Key member statements on S. 1 are included in Sections 4 and 5, below.
2/12: The House Financial Services Committee will hold a hearing entitled, “The Use of Sanctions and Economic Statecraft in Addressing U.S. National Security and Foreign Policy Challenges.” The meeting will take place at 10am and be webcast here.
2/6: The House Foreign Affairs Committee held a hearing entitled, “U.S. Policy in the Arabian Peninsula.” Witnesses were: David Harden, Georgetown Strategy Group (testimony); Mara Karlin, SAIS (testimony); Jake Sullivan, Carnegie Endowment for International Peace (testimony); and Michael Singh, WINEP (testimony).Video of the hearing is here. Opening remarks from Chairman Engel (D-NY) are here.
2/6: The House Foreign Affairs Committee held a markup of H. J. Res. 37, “Directing the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” Video of the markup is here. Opening remarks from Chairman Engel (D-NY) are here. Also see: US lawmaker questions arms sales to Saudi-UAE coalition in Yemen (Al Jazeera 2/7)
2/5: The Senate Armed Services Committee held a hearing entitled, “United States Central Command.” The sole witness was Gen. Joseph L. Votel, Commander, United States Central Command (statement – entitled, “On the Posture of U.S. Central Command Great Power Competition: the Current and Future Challenges in the Middle East). Chairman Reed’s opening statement is here. Video of the hearing is here. Also see: Warren (D-MA) press release, “Senator Warren Gets Answers from CENTCOM Commander About Yemen Operations”
On S. 1
GOP leaders tout passage of S. 1: Rubio (R-FL), Risch (R-ID), Gardner (R-CO) [also here], McConnell (R-KY Welcome Senate Passage of Strengthening America’s Security in the Middle East Act; other GOP senators also issued happy statements: Alexander (R-TN), Hoeven (R-ND) [which notably mentions all parts of S. 1 except the CBA]; Perdue (R-GA); Portman (R-OH); Murkowski (R-AK), Perdue (R-GA), .
On 2/5 Rubio (R-FL) published a (substantively surreal, hilarious) op-ed in the New York Times entitled, “The Truth About B.D.S. and the Lies About My Bill [which among other things argues for the need to fight boycotts of Israel by highlighting the boycott effort targeting SodaStream over its operations in the West Bank]
Speaking in support of S. 1, Risch (R-ID) this week seemed to forget that he was supposed to at least maintain a pretense that the goal of the CBA is NOT quashing free speech. “The Combating BDS Act of 2019 is an act that has some controversy to it. Again, the goals have already been discussed on the floor for many days and at considerable length. Without going into all of the details, it is designed to see that the BDS activity is tamped down and that it is not appropriate to use against our friend Israel.”
Explaining her vote in support of S. 1, Duckworth (D-IL) admitted, in effect, that her vote sold out her commitment to free speech to other concerns: “I have long had concerns about the Combating BDS Act and similar legislation, which could be interpreted to change longstanding U.S. policy towards Israeli settlement activity and could have negative implications on domestic
freedom of speech protections….While this was among the more difficult votes I have taken, ultimately the national security and other benefits of the entirety of this legislation could not be ignored or passed up.” She offered a longer (and equally problematic) explanation in a message to concerned constituents, in which she further embraces the false binary that Senators sometimes have to choose between defending the Constitution and ensuring U.S. national security (not hard to see the slippery slope – that offers excuses for trampling on any/all civil rights and liberties, this kind of logic stands is on…)
Explaining her vote against S. 1, Feinstein (D-CA) stated: “Despite my strong support for Israel, I couldn’t support legislation that infringes on Americans’ First Amendment rights. Free speech is the foundation of our democracy and this bill would erode that foundation. I encourage my colleagues in the House not to support this bill as written. If this legislation were signed into law, I fail to see how it could survive a court challenge. Federal courts in Arizona and Kansas have already blocked state laws punishing contractors who boycott Israel. It’s unlikely this bill, which encourages similar laws, would be any different. Additionally, I’m deeply troubled by the fact the legislation would also apply to Israeli settlements in the West Bank, territory that Israel has never claimed as its own. U.S. recognition of the settlements as a part of Israel pushes the prospects of peace further out of reach and undercuts our ability to remain a neutral arbitrator between Israel and the Palestinian people. Any legislation that encroaches on the First Amendment should be considered with great caution. I don’t believe that was the case here. We can’t give states a free pass to undermine the Constitution.”
Also, last week’s free speech superstar, Senator Van Hollen (D-MD) delivered another epic floor speech this week defending free speech and opposing the CBA. It is once again worth reading in full, and included, “It is a really shameful and disappointing day when the sponsors of this legislation took a bill demonstrating strong bipartisan support for Israel, to our friends and allies that share our commitment to democracy, and share other values we hold dear, that Senators took that bill and used it to attack the constitutional rights of American citizens who may want to peacefully demonstrate their opposition to some of the Netanyahu government’s policies–not in the way you would choose, not in the way I would choose–but in a way they have a right to do as American citizens. So in making these changes to the bill, the sponsors are sabotaging what was a bipartisan bill to support our friend and ally Israel and in the process strengthening the very boycott movement that we seek to oppose. That hurts Israel. That hurts the United States. This is a really sad day in the U.S. Senate, when we took something that we all agreed on and decided to use it to attack the constitutional rights of American citizens to express opinions we may disagree with.”
This week’s superstar defender of free speech award goes to Rand Paul (R-KY) who delivered two epic, blistering speeches on the Senate floor this week opposing S. 1: Epic Rand Paul (R-KY) floor speech #1, delivered Feb 4 (after he proposed an amendment stripping the CBA out of S. 1) and Epic Rand Paul (R-KY) floor speech #2, delivered Feb 5 (when S. 1 was brought to a vote). They are both worth reading in full – and full text is included in Section 5, below.
Explaining his vote against cloture on S. 1, Markey (D-MA) (who later also voted no in the final vote on S. 1) stated: “The Boycott, Divest, Sanctions movement fundamentally challenges Israel’s right to exist and prosper, and that is wrong,” said Senator Markey. “I stand firm with our ally Israel. I voted to proceed with a vigorous debate on the underlying legislation that I originally co-sponsored, but Republican Senate leadership manipulated the bill text without warning by inserting unconstitutional language in order to divide Senate Democrats for political purposes. Israel should never be treated as a political football. That is why I cannot vote to end debate without real opportunities to amend the current legislation. I will continue to support efforts to ensure Israel prospers, but I will not support this legislation without significant changes before a vote on final passage.”
Also see: Senate passes anti-BDS measure with notable Democrats in dissent (JTA, 2/5)
The House also got into the game. Rep. Jeffries (D-NY) issued a press release 2/7 supporting expeditious House action on S. 1, and completely ignoring the free speech concerns it raises: “The relationship between the United States and Israel is a special one that is rooted in our shared values, an important strategic partnership in the Middle East and a mutual commitment to a lasting two state solution between Israel and a demilitarized Palestinian state. The Senate has acted and now it’s time for the House to work its will through the committee process and regular order. Israel lives in a tough neighborhood and is surrounded by enemies. Therefore, it is vital that we maintain Israel’s qualitative military edge in a bipartisan way. We are prepared to tackle this objective. The Congress should also reject any effort to delegitimize Israel and undermine its character as a Jewish and Democratic state. I look forward to working closely with Chairman Eliot Engel in that regard.”
The Hill reported on other House Dems who are less enthusiastic about taking up S. 1:
- Rep. Grijalva (D-AZ) commented about S.1: “I hope we don’t take it up…I think restrictions on a citizen’s ability of organization to be able to influence a policy — whether we agree or disagree with it — should be protected.” and “I don’t know how this is being played out, but anything that begins to restrict people’s ability to influence and to try to affect something, we shouldn’t prohibit them from being able to use that tool. “I know people are going to disagree with me, but I just hope we don’t see it here.”
- Yarmuth (D-KY) said, “I am not particularly sympathetic to anything that denies people the right to use their economic leverage to achieve what they want, as a general proposition.”
- Hoyer (D-MD) said: ““The Cardin bill [the IABA] deals with … international organizations [NOTE: The ACLU opposes the IABA at least as adamantly as it opposes the CBA]. This bill that was passed in the Senate deals with a different subject, which has not been vetted in the House.There is clearly a question of drawing the line [between] free speech and the right of anybody to advocate the policy that they want, and actions to hurt an ally of the United States. And I think that that’s an important distinction. I am not sure the Rubio legislation drew that distinction properly.”
- Raskin (D-MD), “said he opposes the BDS movement, citing the need for ‘intensive engagement and investment on all sides. But I’ve also defended everybody’s First Amendment rights at the same time. So I guess, in this whole field you have to look very specifically at the details of particularly legislative motions. And I’ve not seen them.’”
Other stuff on the Record
Zeldin (R-NY) and Perry (R-PA) 2/7: Reps. Zeldin and Perry Secure Declassification of Damning UNRWA Textbook Report [NOTE: As observed by the JTA’s Ron Kampeas on Twitter, “.@RepLeeZeldin sought declassification of UNRWA textbooks, claiming coverup of anti-Israel bias. He got it. From his *release* we learn that … UNRWA provided materials to counter anti-Semitism and anti-Israelism. Some (*some*) staff rejected it. This is … anticlimactic.”]
Joyce (R-PA) 2/7: Profile in Jewish News Syndicate – “Pennsylvania Rep. John Joyce vows to support a ‘strong Israel,’ and fight anti-Semitism
Cruz (R-TX) 2/7: Speech at AEI. Cruz tweeted: #CruzAtAEI: I’ve been leading the fight to officially recognize Israel’s sovereignty over the Golan Heights, won in a defensive war, and critically necessary for Israel’s security. @AEIfdp @AEI (tweet includes video of his speech at AEI bashing Obama as hostile to Israel, etc) – full speech is here
Cotton (R-AR) 2/7: Tweet: Yesterday @ZOA_National President Mort Klein, Chairman Mark Levenson, and I had a good discussion about the Senate’s ongoing efforts to combat the anti-Israel BDS movement and the importance of U.S. recognition of Israeli sovereignty over the Golan Heights. [A few minutes before this tweet, Cotton tweeted a different version which he subsequently deleted. It read: “ Yesterday @ZOA_National President Mort Klein and I discussed how to combat the anti-Israel BDS movement and the potential for U.S. recognition of Israeli sovereignty over the Golan Heights.]
Kennedy (R-LA) 2/5: Supporting all the various parts of S. 1 [“…I like the fact that S. 1 reaffirms our commitment to protecting Israel. I think that is important. I think Israel is certainly our best friend in the Middle East and one of our best friends in the world. Some days I think Israel is our only friend in the world…S. 1 is going to combat a radical economic warfare campaign against
our friend Israel. That is long overdue.”]
Fischer (R-NE) 2/5: Tweet – “The @USArmy today announced plans to purchase the #IronDome defense system from Israel. This is another good example of how U.S.-Israel missile defense cooperation benefits both nations.”
Murphy (D-CT) 2/5: After bombshell CNN Investigation, Murphy Calls for End of U.S. Involvement in War in Yemen
Murphy (D-CT) 2/4: Murphy Opposes McConnell Amendment, Calls on Congress to Debate AUMF for War in Syria
Sen. Rand Paul (R-KY) – the sole Republicans to vote against S. 1 – delivered two epic, blistering speeches on the Senate floor this week defending the First Amendment. They are worth reading in full and to make that easy, they are copied below.
Epic Paul (R-KY) floor speech #1, delivered Feb 4 (after he proposed an amendment stripping the CBA out of S. 1):
Mr. President, one of the things that I think are fundamental to our country is the freedom to protest, the freedom to dissent, and the freedom to boycott if you so choose. Our country was actually founded with a boycott. The boycott was dumping English tea into the ocean. In my State, Henry Clay was famous for passing legislation boycotting British goods so that people could wear American clothing. He actually fought a duel over that and became famous and then became one of the most famous U.S. Senators.
The idea that you should be allowed to boycott, that it is an extension of your speech, that it is an extension of the First Amendment, I think goes to the very heart of who we are as a people. It
is hard for me to believe that part of this bill they are putting forward would affirm State law that says you can’t do business with the government if you are involved with the boycott against Israel.
I am not really making a point on whether the boycott is good or bad or with regard to Israeli policy; my point is whether it is good or bad with regard to the First Amendment. You see, the First Amendment isn’t really about hearing from people about things that you like. If it is speech that you like and people say you are a great guy, you are not going to be offended by that speech. It is when people are critical of you or critical of your thoughts or have different thoughts–that is what the First Amendment is about.
It is an extraordinary thing in our country that people can actually speak up and speak their minds. If people don’t think the settlements on the West Bank are a good idea, should they be allowed to speak their mind? Should they be forbidden from doing work for the government?
The problem is that the government has gotten so big. There is a teacher in Texas who is Muslim. I think she teaches autistic or special needs kids. She is a contractor. She was asked to sign a statement saying that she would never boycott goods made in Israel. Well, she objects to some of the policies, I presume, on the West Bank. I don’t agree with her, but that is a fundamentally American thing–to be able to object. Should we have a law that says you can’t boycott your government and that you can’t boycott your government’s policy? To me, that is a real danger.
I have an amendment to this overall bill that would simply say that we remove any kind of affirmation of anti-boycotting legislation, that boycotting or protesting is something so fundamentally American, so fundamentally associated with the First Amendment that even if we don’t like what you are boycotting, even if we don’t like what you are saying, that in America we allow that to happen because that is what freedom of speech is about.
Freedom of speech is not about the easy stuff. It is not about the language you like. It is not about saying “Oh, if you are a Republican and everybody is saying Republican things, that is fine, but we are not going to hear from Democrats,” or if you are a Democrat, it is not about saying “Well, the First Amendment is fine for Democrats, but we don’t want to hear from those Republicans.” It is about speech, whether you like it or not. Boycotting is speech.
I went to a Baptist college. I remember when I was in college that the Baptist women of the Southwest Baptist Convention didn’t like pornography being out in front at the store where kids could view it. Do you know what they did? They marched. They didn’t hurt anybody. They didn’t commit violence. They did nonviolent protests by marching in front of the utility stores until–guess what–because of the economic boycott and the bad press, the people put the pornographic magazines behind the counter, and only adults were allowed to buy them and look at them. That is from a boycott.
We boycotted English tea to found a country.
Does anybody remember the boycotts in Montgomery? Rosa Parks didn’t like the fact that she was being separated and told to sit in the back of the bus, so African Americans from around the country but definitely across Alabama and Montgomery boycotted the bus system.
Are we here to say that we are going to forbid boycotting, that you can’t do business with the government? Here is the problem. People say: Oh, it is a privilege to do business with the government. What if you are a physician and half of your business is with the government? What if you are a nurse? Half of the healthcare in our country is paid for by the government. What if you are a teacher and you work in the public schools? Are we going to ask all of these people to take a litmus test that they are not going to boycott or protest against their government’s policy? What kind of country would we live in? Yet it is groupthink around here. Everybody is so paranoid and saying: Oh, we can’t object to this lobby. Because this lobby is so powerful, we can’t object to them.
Look, it isn’t about the ideas; it is about the freedom of speech.
I ask unanimous consent that my amendment be put forward, which is a germane amendment.
Listen to what you will hear here. There is going to be an objection. They are not going to let me vote on this. So not only are they going to ban boycotting, they are banning the idea that, in the Senate, we would vote on whether we would allow boycotting in our country.
My amendment is to take out the language that supports banning boycotts and reaffirms the First Amendment. It will be denied because nobody wants to vote on this. Nobody wants to have a debate over the First Amendment.
Epic Paul (R-KY) floor speech #2, delivered Feb 5 (when S. 1 was brought to a vote):
…our country was founded upon the concept and in the midst of a great boycott. At the time, we were boycotting British goods and, most specifically, British tea. There is likely nothing more American than to protest, to dissent, and to boycott.
In fact, our Founding Fathers–many of them, including Sam Adams and the Sons of Liberty–gathered in 1773, dressed as Indians, and dumped 90,000 pounds of British tea into the harbor. Some of our Founding Fathers were actually involved with trying to smuggle and import Dutch tea to get around the rules and to get around having to be so dependent on England.
But this was a boycott. The sad thing today is that we will be debating whether or not to place limitations on the First Amendment right to boycott, and we will do it because the vast majority of this body disagrees with the concept of what the people are boycotting over.
I would argue that it doesn’t matter what the issue is. In fact, the First Amendment is to protect issues of speech and issues of boycott that you may disagree with.
I am not particularly enamored with–in fact, I don’t favor–the boycott of Israel. I think Israel has been a good ally. Yet the freedom of speech, the freedom of the press, the freedom to protest, and the freedom to boycott are fundamentally American. How can we give that up so easily? How can we just say: Oh, well, it is a good ally, and we don’t want anybody boycotting them. We are just going to amend the First Amendment because we don’t like this boycott.
Our Founding Fathers would roll over in their graves if they knew what we were doing today.
I stand today at Henry Clay’s desk. This desk has been passed down to the Senator from Kentucky ever since he left the Senate in 1850. In 1809, before he arrived here, there was a boycott of British goods. In fact, there was an official embargo that Jefferson had put on when we were upset with what the British were doing on the high seas with confiscating our ships, and we decided to have an organized embargo, a boycott.
In Kentucky, Henry Clay was still in the State legislature, and he proposed a rule saying that the legislators themselves should not wear British clothing. It was opposed by a guy named Humphrey Marshall, who was a cousin of the fourth Chief Justice John Marshall. They got into heated words, at which time Henry Clay, wearing his American homespun clothing, was confronted by Humphrey Marshall, who came in wearing what was described as garish English imports, and he called Henry Clay a demagogue for passing this legislation.
Well, Henry Clay gave it right back and called him a liar, at which point the words accelerated, and they were about to come to blows when a massive 6-foot-6-inch German-American legislator jumped in between them and stopped the fight from ensuing on the floor.
Henry cooled down. Henry Clay decided to apologize. He apologizes to the body and gives his apology, and Marshall jumps up and shouts back, “It is the apology of a poltroon,” which is an old-fashioned word for coward.
Things didn’t get much better after that, and Henry Clay challenged him to a duel. It was illegal–and still is illegal–to have a duel in Kentucky. So they went across the river in Louisville and fought a duel, at which time Henry Clay was wounded in the thigh.
In those days, even though the laws were against dueling, you were often rewarded for dueling by getting a promotion. So the State legislature, within a week or two, elected Henry Clay to go to the U.S. Senate to represent them.
So not only are boycotts a big part of our history, but this particular boycott actually elevated Henry Clay to the U.S. Senate to become one of the most famous Senators in our history.
As for other famous boycotts, there was a boycott of the buses in Montgomery in 1955 and 1956. The boycott went on for 382 days. It was set off, as you will recall, by Rosa Parks’ refusing to be seated in the back of the bus. But this boycott was about speech, and it was about law, and it was about justice.
Now, people would say: Well, I agreed with that boycott. That is OK. It is OK to have good boycotts that I agree with, but it is not OK to have boycotts I disagree with.
I will make this argument. If today this body votes to encourage this idea that legislatively we should penalize people who boycott, I will argue today that–guess what–if you can penalize boycotts you disagree with, you may well find some day that people are penalizing boycotts that you agree with. If you have the power to disallow boycotts you don’t like, you are now granting to the government the power to ban boycotts that you may well like.
The thing is this: Should the majority get to decide, well, that is a good boycott and that is a bad boycott, and you can say certain types of speech as long as I agree with you?
No, the freedom of speech–the First Amendment–is about allowing language you don’t like. It is about allowing boycotts you may not like.
If you go through our history, our history is replete with boycotts, from the Boston Tea Party to the boycott around the War of 1812 of British goods, to the bus boycott in Montgomery–boycott after boycott. It is a fundamental aspect of the First Amendment.
You don’t believe me? Listen to the Supreme Court. In NAACP vs. Claiborne Hardware, Blacks were protesting a Whites-only store that wouldn’t allow service or allow sales to Blacks. They boycotted the store, and guess what. The Supreme Court said, 8 to 0, that you can boycott, particularly if your boycott is based on speech or it is based on a political viewpoint.
Now, while I don’t agree with people who want to boycott Israel, if you live in our country, or wherever you live, and you don’t like their policies, do you not have a right to boycott? Are we somehow going to take away your right to boycott because we disagree with what you are boycotting over?
I have a short list here of a few different things that we have boycotted over, and they range, interestingly, on both sides of the coin. Most recently, people on the left who don’t like President Trump have boycotted Ivanka Trump’s fashion brand.
A year or two ago, Christians boycotted Disney over what they considered to be liberal movies or movies they didn’t appreciate because of the families depicted.
In North Carolina, liberals boycotted the North Carolina transgender bathroom law.
People have boycotted Chick-fil-A because the CEO was opposed to same-sex marriage.
The Dixie Chicks criticized George W. Bush, and they were boycotted.
It doesn’t matter whether you agree with any of these boycotts. Boycotts are speech. How could we possibly boycott someone’s speech? But that is what is going on.
About 20 States have passed these laws, and what we are now considering before our body is putting our imprimatur–our stamp of approval–which we are going to put on these States that are penalizing boycotts.
So who are some of the people that we are going to penalize?
In Texas, there is a speech pathologist who has lost her job. She was working for the school system. She has been in this country 30 years. Her name is Bahia Amawai. She has been here 30 years. She is a U.S. citizen. She speaks three languages. She works with children with autism, disabilities, and speech impediments.
Her contract was not renewed because they told her she had to sign a pledge that she will not boycott Israel. She also had to sign a pledge that she would never do anything economically or refrain from any action–buying a product–with anyone who does business in Israel or does business in an area they call the Israeli-controlled territory.
There has been a dispute for 30 or 40 years over the West Bank, whether the Palestinians should have more autonomy, whether it should be a country, whether it should be a province of Israel, whether they should vote, whether they should not vote. This is a political debate.
This woman has an opinion that she doesn’t want to sign this pledge. She no longer works.
We heard on the floor from one of my colleagues yesterday. He said: Well, it is the government’s money. The government’s money shouldn’t be used to allow a boycott.
Well, if you are a teacher and you get a salary, is that still the government’s money after you have done your job and you have your paycheck? Should a teacher be prevented from boycotting or expressing their speech through an economic action or, really, through an economic inaction by not buying something?
It is the whole idea of “not.” A boycott is not even doing anything. A boycott is refusing to buy someone’s product.
How could we possibly be in favor of that? How could we have such clouded judgment that this body, which has such historic importance, is going to vote to place a ban on freedom of speech? How could that possibly happen in our country?
This woman has been denied her job. It is her main job. She worked for the school district. She had a contract. Her contract has been denied because she refuses to sign a pledge saying she will not buy a product from somebody that she disagrees with politically.
How did we get here? How can we possibly even be considering such absurd limitations on the First Amendment?
This one is even worse. In Arkansas, the newspaper, the Arkansas Times, routinely takes ads. That is how newspapers make money. One of the groups that advertises with them is the State university. The State university will no longer advertise with this newspaper unless they fine them first or give them some kind of penalty. They will not advertise with them unless the newspaper signs a statement saying that they will not be critical of policies in Israel.
How could we possibly say to a newspaper that you can’t do business with the State if you criticize a policy in Israel? How could that possibly be the American way?
The vast majority of the people here, like sheep, will fall all over themselves today to vote to try to limit your right to boycott.
People say you don’t have a right to a job, but what if you are with a State? What if you are a teacher and that is whom you have always worked for and you have worked for the government? Can we start placing rules because the government pays you on what your political viewpoint is?
Arkansas says: Well, the newspaper can do it, but they would have to pay a 20-percent penalty.
So if you have certain viewpoints or you refuse to bow down to the government and bow down to the opinion the government tells you is appropriate, we will let you work for the government, but you get penalized 20 percent.
Imagine when this becomes another view, when this becomes some other issue you are interested in. Probably the most famous boycott in history other than the Montgomery bus boycott over segregation was the anti-apartheid boycott that ultimately led to a change of government and a change of policy. That wasn’t done with automatic weapons. That wasn’t done with tanks. That wasn’t done with planes and bombs. That was done by good old-fashioned protest, peaceful protest, by agreeing not to buy something.
Can you imagine the State is putting into place laws that punish you for not buying something, for refusing to buy something from someone? It is galling. Will this be declared unconstitutional? Nobody knows for sure other than the men and women of the Supreme Court, but in NAACP v. Claiborne Hardware, eight to zero they said it was unconstitutional to ban or limit any boycott if that boycott is about speech or political views. Well, clearly that is what this is about–political views.
In two of the States that have passed these laws–Kansas and Arizona–there have already been protests and court cases.
In Kansas, there is a woman by the name of Esther Koontz. She is a Mennonite, and she is a math teacher. She has been a math teacher for about a decade. She has a contract with the school system to teach other teachers about teaching math and science. She said she couldn’t in good conscience sign a pledge saying she would never boycott any group who originated out of Israel. What happened to her? She was fired or she couldn’t continue in the job she had been in for I think a decade. Her case went to court. Guess what. The court said it is unconstitutional. You cannot limit behavior. You cannot limit employment with the government based on one’s political views. So on the first challenge, it was struck down as unconstitutional.
We go to Arizona. For political reasons, Mikkel Jordahl boycotts consumer goods made in Israel. This is America. You don’t have to agree with what he is doing, but in America, you have the right to protest. You have the right to boycott. For 12 years, he has been doing legal services for the local county jail. They brought in his contract, and in his contract, they said: You have to pledge that you will no longer support any activities that agree with your political viewpoint that you don’t like Israel’s policy. He went to court. Guess what the court said. The law is unconstitutional.
These laws have gone to Federal court twice–once in Kansas and once in Arizona–and have been struck down. So what is this august body going to do? We are going to take it right up, and we are going to say: By golly, keep passing these unconstitutional laws in the States. We got your back.
It has already been struck down twice by two Federal district courts. The Supreme Court has said that the concept of limiting boycotts is unconstitutional. The First Amendment says that Congress can’t pass a law limiting speech, and here, we are going to pass a law encouraging the limitation of speech.
One of the famous boycotts was obviously the Montgomery bus boycott. The anti-apartheid boycotts were famous as well, but even if you go further back in our history to about the time of the Boston Tea Party and beyond–another boycott–you find that people were boycotting the slave trade. There were people boycotting buying sugar out of the Caribbean because they didn’t want to have any of that money going to supporting the slave trade.
I would argue that the right to boycott is about as fundamental a right as we have in America. It is a big part of the First Amendment. It is an important part of the First Amendment. It is a fundamental aspect of freedom to be able to dissent, to protest, even when everybody thinks you are wrong. That is what America is about–that you have the right to protest and that the government will not squelch your speech.
How did we get to this point where flippantly today we are going to encourage States to put limitations on the First Amendment? I don’t know how we got here.
When we look at the First Amendment–and some will say: Well, you know, this is just the State government. We are just allowing States’ rights.
Well, here is the thing about States’ rights: Ever since the civil rights era, we have decided that the Bill of Rights applies to the States. The 14th Amendment, going all the way back to the time of the Civil War, incorporated the 1st Amendment. Many of the boycotts have actually been in favor of civil rights. Just because this one is a boycott about something else that you may or may not like or may or may not support doesn’t mean we should place limitations on it.
If we begin to do this–it is a road that some may say is paved with good intentions–we will be headed toward a time where speech will be regulated by our government, where the idea of dissent and the idea of protest will be judged on whether people think or the majority of the body thinks that the protest is in order, whether the majority of the body thinks you should be allowed to protest. How un-American. I can’t think of anything more un-American than trying to limit the ideas and actions of a boycott.
I remember when I was in college, the women of the Southern Baptist Convention said they didn’t like pornographic magazines out in the open where kids could see them. They didn’t even ask the legislature for a law. They actually did better than asking the legislature for a law; they simply marched out in front of all the convenience stores. They did it for about a month. Guess what. Convenience stores decided they didn’t like people protesting and everybody talking about them, so they put the magazines behind the counter. That is the American way. Nobody forced them to do it; they did it under public protest and public pressure.
The idea that we want to pass a law today that says to the States: Oh, we like the First Amendment, but if we don’t like what they are saying and we don’t like what they are protesting, it is OK to punish these people. It is OK to say to the woman in Texas who feels very strongly about this issue in Israel that she can’t be employed anymore by the school district because of her political views.
I can’t imagine that this is isn’t going to be struck down by the Supreme Court. In NAACP v. Claiborne Hardware, the Supreme Court was unanimous–eight to zero.
How did we get here?
I would say that I hope my colleagues will listen to the debate and that there will be a spirited debate on the First Amendment, but don’t hold your breath. You can see there is no one here other than me. They won’t listen. The hope is that the American people will listen and say: How did we vote to send people to Washington who are so careless with the Constitution that they are willing to vote to ban boycotting, that they are willing to vote for something that has already been struck down by two Federal district courts, something that has already been ruled on by the U.S. Supreme Court, and they are going to go ahead and vote anyway because they don’t like this particular boycott?
The First Amendment isn’t about popular speech; the First Amendment is about protecting unpopular speech.
My hope is that across America, people are listening and that they will call their representatives today, call their Senators and say: How could you? How dare you take the First Amendment, crumple it up, and say “Oh, today we are going to limit the First Amendment to only boycotts we approve of. We are going to limit it to speech we approve of.” What a disgrace. What a terrible day in our history, that we are going to take the First Amendment, crumple it up, stomp on it, and simply say: Oh, we are afraid of that speech, so we are going to ban it.
I think it has the opposite effect. I think it only encourages the protest.
What I would say to my colleagues is, think long and hard today before you vote to place limitations on the First Amendment.