How a bill that seeks to shut down boycotts of Israel is spreading state-to-state

Introduction

The front lines in a bitter debate between Israel’s defenders and critics now lie in an unexpected place: state capitals across America.

Palestinian rights activists calling for people to boycott, divest from and sanction Israel have racked up policy victories over the last 14 years across the globe and in the U.S., particularly on university campuses.

In response, pro-Israel advocates have taken the battle to state legislatures, where their lobbyists have worked with sympathetic lawmakers to shut down an effort they say threatens the very existence of a Jewish state.

A rapid succession of states — 27 in four years — have adopted measures to curb the boycott initiative known as BDS.

These new laws and executive orders have been crafted by activists, then copied from one state to the next, adopted with virtually identical language. Most require tens of thousands of state contractors to pledge not to boycott Israel — or lose their government funding. Other efforts require state pension boards to divest from companies that boycott Israel.

As part of a two-year investigation into copycat legislation in statehouses, the Center for Public Integrity and  USA TODAY examined dozens of anti-boycott bills and executive orders and then traced the communication between pro-Israel lobbyists and lawmakers who supported their efforts.

The broader investigation, “Copy, Paste, Legislate,” which also involves The Arizona Republic, shows for the first time how governors and lawmakers across the country allowed a handful of special-interest groups to write public policy word for word.

In Louisiana, emails obtained by the Center show that pro-Israel advocates actually wrote the governor’s anti-boycott executive order and press release.

In Nevada, a pro-Israel lobbyist guided the legislation’s sponsor with detailed and frequent feedback, in one case reviewing and approving statements by a lawmaker who planned to support the bill.

In South Carolina, state Rep. Alan Clemmons called an activist supporting his anti-boycott legislation his “buddy and wordsmith-in-chief.”

A network of pro-Israel Jewish and evangelical Christian advocacy groups have quietly but forcefully pushed the anti-boycott legislation, marketing it as a solution to address a growing trend of anti-Semitic incidents. Among the leaders are well-known organizations such as the Jewish Federations of North America as well as smaller groups such as the Israeli-American Coalition for Action.

The groups pushing the bills are building off goodwill generated from years of courting state officials with — sometimes free — trips to Israel. And the Israeli government then writes to thank state officials instrumental in passing the measures.

Now pro-Israel groups are urging states to enforce the new divestment laws against specific companies, such as Danske Bank and Airbnb, which angered pro-Israel advocates last year when it announced it would remove Israeli rental listings on the West Bank. The groups are also pushing for passage of further measures to undermine pro-Palestinian activism on college campuses.

The anti-boycott movement in state capitals is a strikingly bipartisan initiative at an especially partisan moment in American history. In 2017, all 50 U.S. governors and the mayor of the District of Columbia signed a statement rejecting the BDS movement as an effort to “demonize and delegitimize Israel.”

Some anti-boycott activists have said they took the debate to state legislatures in part to find friendlier waters than universities. “You don’t want to fight on your enemy’s terrain,” said pro-Israel activist Noah Pollak at a 2016 conference. “While you were doing your campus antics, the grown-ups were in the state legislatures passing laws that make your cause improbable.”

Taken together the anti-boycott measures represent a largely successful effort to embed controversial foreign policy into state law, short-circuiting public discourse about Israel, to the detriment, say some, of Americans who would like to do business with their states but also hold deep convictions about Palestinian rights.

The American Civil Liberties Union and Council on American-Islamic Relations have spearheaded a slew of lawsuits over the demands for contractors to disavow Israel boycotts. Among the plaintiffs: a Texas speech pathologist who decided she could not work a tenth year at her suburban school district, a former Maryland state legislator who lost out on a $50,000 state contract, and an Arizona lawyer who had to choose between advising state prison inmates and a zeal to promote justice overseas. Last week a federal judge in Texas ruled the state’s anti-boycott law was likely unconstitutional, joining two earlier federal court decisions in Arizona and Kansas. But another court in Arkansas has disagreed, and it remains to be seen whether a higher court will take up the issue.

Backers say the anti-boycott laws fit with the United States’ longstanding alliance with Israel and clamp down on discrimination against Israelis.

“The BDS movement is an anti-Semitic movement. It discriminates against no one on the planet other than Jews,” said Peggy Shapiro, executive director of the Midwest chapter of StandWithUs, which has advocated for anti-boycott laws. “It’s important for governors and legislatures to speak up and say this is not something our states will invest in.”

The U.S. Senate in February passed federal legislation championed by Sen. Marco Rubio, R-Fla., to protect the state laws from legal challenges, though it appears unlikely to pass the House.

Supporters of the international BDS movement argue Israel’s treatment of Palestinians is inhumane, and that the new anti-boycott state laws help insulate Israel from legitimate criticism.

“They’re attacking individuals’ and even companies’ and nonprofits’ ability to engage on this issue through First-Amendment-protected activities,” said Dima Khalidi, director of Palestine Legal, which provides legal support to Palestinian rights advocates. “This movement is about human rights.”

It’s a high-stakes, emotional discussion. The anti-BDS lobbying campaign is pitting Holocaust survivors and their memories of 1930s German boycotts of Jewish goods against activists who, seeing similarities between Israel’s treatment of Palestinians and the Jim Crow South, hope to usher in a new era of equality for Palestinians.

The anti-boycott movement in the states has frustrated some American Jews, who in surveys support Israel yet criticize some of its policies.

“Boycotts are a tactic. It’s a neutral tactic,” said Rabbi Jill Jacobs, executive director of T’ruah, a Jewish human rights group that supports neither BDS nor state anti-BDS laws. “The best way to protect Israel is to fight for the human rights of both Israelis and Palestinians there and not to argue about the tactics.”

The start of a movement

Illinois and South Carolina were the first states to pass anti-boycott measures in 2015, and many of the bills that followed shared their exact wording, from Arizona to Rhode Island and more states in between.

At the ground level, the debates are personal. University of Nevada-Reno junior Matthew Levin showed up to a Carson City meeting room in March 2017 in a suit jacket and tie to urge his state to both turn away contractors that boycott Israel and to disclose any investments in boycotting companies.

Earlier in the semester, Levin’s Jewish fraternity brothers in a Las Vegas chapter of Alpha Epsilon Pi found swastika graffiti near their campus, part of a nationwide uptick in anti-Semitic incidents. Attacks on Jews jumped by 37 percent in 2017, according to the FBI, and they’ve since grown deadly. In October 2018, a gunman killed 11 people at Pittsburgh’s Tree of Life synagogue, and just last week another shooter killed one and injured three at the Chabad of Poway Synagogue near San Diego.

“I’m scared to be a Jew for the first time in my life,” Levin told the committee. “And the threats to the state of Israel are not making it any better.”

More than a dozen others supported the bill that day, alongside more than 60 people who showed up to a later hearing, easily outnumbering the handful of opponents who testified, according to video. The show of consensus against the BDS movement was bipartisan, as it had been in other states. The bill passed.

Former Nevada Lt. Gov. Mark Hutchison worked closely with a pro-Israel lobbyist, Dillon Hosier, to craft and pass the bill modeled from Arizona’s law, according to emails obtained by the Center for Public Integrity.

“I don’t think there’s a First Amendment right to have the government do business with you,” Hutchison said in an interview.

Hutchison has traveled to the Middle East at least twice, including on a $15,000 trip in 2013 paid for by the American Israel Education Foundation, an affiliated charity of pro-Israel lobbying groupthe American Israel Public Affairs Committee. Israel is a common destination for state officials, including some other anti-boycott bill sponsors. At least 21 of the 50 sitting governors have visited or planned to visit the country at least once, according to a Center for Public Integrity analysis of news reports.

At one point an assemblywoman supporting the bill asked for the lieutenant governor’s thoughts on her planned testimony. His office forwarded the testimony to Hosier, the lobbyist.

“Hits all the right notes,” the lobbyist replied.

Hosier at the time worked for the Israeli-American Coalition for Action, a Los Angeles-based advocacy group that works to strengthen U.S.-Israel ties. A board member of the group, Adam Milstein, said in a 2017 speech that his organization was “spearheading” efforts to combat BDS at the state and federal level, taking credit for passing legislation in California and working to pass it in five other states at the time, according to prepared remarks. The charitable group that created the IAC for Action, called the Israeli American Council, has received more than $60 million in donations from GOP megadonors Sheldon and Miriam Adelson.

But anti-boycott legislation has been a team effort, Hosier told the Center for Public Integrity, saying there was “a core group of organizations that attempted to drive it across the country.”

Republican state representative Clemmons sponsored the first anti-boycott law dealing with contractors in South Carolina in 2015. He said a trip to Israel, paid for with election campaign funds, inspired the legislation and that he received help from multiple groups, including the D.C.-based Israel Allies Foundation.

“We’ve not been a big financial player. It’s just really coordinating the different groups to work together,” said Daniel Williams, a former executive director of the foundation. “And the person that has been driving that is Joe Sabag.”

Clemmons in 2017, in an email obtained by the Center for Public Integrity, called the foundation’s Sabag his “buddy and wordsmith-in-chief.” Sabag, formerly the foundation’s U.S. director who has since moved to the IAC for Action, said he often helps legislators who ask for his expertise.

George Mason University law professor Eugene Kontorovich also helped draft the bill, and went on to assist other states with their anti-boycott measures; he now frequently defends the laws’ constitutionality in the media.

“One man’s boycott is another man’s discrimination,” Kontorovich said.

“One man’s boycott is another man’s discrimination.”

Also in 2015, Illinois passed a bill forcing state investment funds to divest from companies boycotting Israel, aided by the American Jewish Committee and a local Jewish Federation, according to emails obtained by the Center for Public Integrity.

The Israel Allies Foundation then announced it was combining the South Carolina and Illinois bills into “one piece of model legislation.” Clemmons, the South Carolina state representative, said he also urged lawmakers in other states to copy his bill.

Hosier, who has since left IAC for Action to help start a new Israeli-American advocacy organization, now criticizes some of the model anti-boycott legislation. At least five states passed laws mimicking South Carolina’s prohibition on Israel-boycotting contractors, which he says is unconstitutional.

“This is a kind of house of cards that can be very easily knocked over by one or two federal judges,” Hosier said.

In Louisiana, Democratic Gov. John Bel Edwards did not write his anti-boycott executive order nor the press release accompanying it. Both drafts were sent to him by Mithun Kamath, a lobbyist for the Jewish Federation of Greater New Orleans. In an email obtained in a public records request by the Center for Public Integrity, Kamath said that the draft executive order had been reviewed by AIPAC and Israel Action Network, a group founded by the Jewish Federations of North America to “counter delegitimization” of Israel.

The final executive order and press release were nearly word-for-word what the Federation had delivered.

The Federation also hired powerful Louisiana lobbyist Ryan Haynie, who emailed a pro-Israel speech drafted for the governor, though it’s unclear if Edwards used it.

“No pride of authorship just want to help jumpstart the process for you guys,” Haynie wrote to the governor’s office. Haynie and his mega-lobbyist father, Randy Haynie, are fixtures in Louisiana politics and have represented everyone from tech titan Apple Inc. to tobacco giant Altria Group Inc.

A spokesperson for the governor, Shauna Sanford, said it is common for interest groups to supply the governor with talking points and said about the speech that “there’s no way to know what remarks were delivered” since the event was private.

The Jewish Federation of Greater New Orleans, AIPAC and the Israel Action Network did not respond to requests for comment.

Campus vs. Capitol

The anti-boycott efforts have built on groundwork laid by pro-Israel lobbyists a decade ago, when at least 17 states passed legislation saying their pension funds would divest from any companies that did business with Iran.

The new push for legislation at the state level has also followed years of campus activism by Palestinian rights advocates, who hope to replicate the boycott movement that helped end South Africa’s apartheid in 1994. Similar to South Africa, they argue, Israel persecutes Palestinians, controlling their movements on the West Bank and overlooking their abuse by soldiers, among other concerns. (Israel’s supporters deny those claims.)

BDS activists take credit for convincing student governments at more than 60 American universities — New York University, the University of Minnesota and the University of South Florida among them — to take up the Palestinian cause by, for instance, urging their schools to cut ties with companies “complicit in Israeli violations of Palestinian human rights.” They have also persuaded cities such as Berkeley, California, to divest from companies such as G4S accused by BDS activists of providing services to Israeli prisons where Palestinians are allegedly tortured. (G4S said it sold its business in Israel in 2017, that it did not manage the prisons and that independent reviews have found the company did not contribute to human rights violations.) They’ve pushed mainline Protestant denominations such as the United Methodist Church to boycott products made in West Bank settlements. And they have encouraged American celebrities to “#skipthetrip” when offered free tours of Israel.

The movement has had even more success in Europe, where the European Union now requires goods made in Israeli settlements to be labeled as such.

Many of those who have found themselves harmed by state anti-boycott laws, however, are practicing relatively quiet expressions of BDS activism, such as a Texas poet who boycotts Sabra hummus, partially owned by an Israeli company, or the Mennonite teacher who refuses to buy products from companies operating in Israeli settlements.

Omar Barghouti, a Qatar-born Palestinian resident of Israel and co-founder of the BDS movement, predicts that the statehouse countermovement will backfire and actually strengthen BDS in the U.S.

Israel’s “attempts to muzzle free speech and undermine the U.S. Constitution are decisively and perhaps irreversibly alienating the liberal mainstream, including younger Jewish-Americans,” Barghouti told the Center for Public Integrity in an email.

Israeli approval

The Israeli government has congratulated states that passed anti-boycott laws, emails obtained by the Center for Public Integrity show.

“As Israel’s Minister of Strategic Affairs, I have been entrusted with leading the Israeli government’s efforts to counter the discriminatory and anti-Semitic boycott campaign,” Gilad Erdan wrote to Ohio Gov. John Kasich in December 2016 after an anti-boycott bill there became law. “I sincerely appreciate your contribution.”

In 2015, Israel’s Consul General for the Midwest wrote to Illinois Gov. Bruce Rauner’s then-chief of staff who had helped pass that state’s anti-boycott bill: “Great job, as always.”

And during a signing ceremony for Kentucky’s anti-boycott executive order in November, Gov. Matt Bevin said that on his trip to Israel earlier in the year, Prime Minister Benjamin Netanyahu personally asked him to work on the issue, according to a report by Louisville’s WFPL radio station.

What’s next

Pension fund administrators in some states have opposed anti-boycott bills, concerned about politics muddying their fiduciary duties.

“We believe that these assets are held in trust and belong to the participants of the plan and that they should not be used for ulterior motives including social purposes,” said Keith Brainard, research director of the National Association of State Retirement Administrators, whose members oversee more than two-thirds of the $4.4 trillion held for nearly 25 million current or retired employees of state and local government.

Most states that have passed the anti-boycott pension measures have only come up with a handful of companies to divest from, leading some to think the laws are largely symbolic. But state pension funds are still feeling the anti-boycott pressure.

Milstein, the Israeli-American Coalition for Action board member, has urged Florida and Indiana to divest from certain companies and provided them with research on companies that boycott Israel, according to emails obtained by the Center for Public Integrity. IAC for Action also took credit for New Jersey dropping its investments in Danish lender Danske Bank in 2017.

A spokesman for Danske Bank said the bank does not boycott Israel, but that its responsible investment policy prompted it to cut ties with many companies, including two companies in Israel.

Last year pro-Israel groups unsuccessfully pushed Florida to cancel the singer Lorde’s concerts there after she canceled a show in Israel, and they successfully lobbied state officials to punish short-term rental website Airbnb for deciding to remove listings in Israeli West Bank settlements (a decision the company recently reversed).

Lorde did not respond for comment. A spokesman for Airbnb said it opposes the BDS movement.

More bills to fight the BDS movement may be on the horizon. A pro-Israel Christian evangelical group based in Tennessee, Proclaiming Justice to the Nations, plans to lobby states to define anti-Semitism to include criticisms of Israel that apply “double standards by requiring of it a behavior not expected or demanded of any other democratic nation.” The broad definition, which originated from the U.S. State Department’s “working definition” of anti-Semitism adopted in 2010, could force state universities to treat BDS activism as anti-Semitic.

“That’s one of our goals is to shut down these groups that parade themselves as legitimate clubs on college campuses,” said the Tennessee group’s leader, Laurie Cardoza-Moore.

South Carolina last year became the first state to adopt the broad anti-Semitism definition by including it in a plank of its budget that is only valid for one year. Emails requested by the Center for the Public Integrity show that Sabag and Clemmons again teamed up to urge lawmakers to adopt the definition.

Meanwhile, Proclaiming Justice to the Nations planned bills in Florida, Ohio and Tennessee this year. So far the Tennessee bill has been introduced, and the Florida bill has passed the legislature and awaits the governor’s signature.

“The attorneys are still working on it,” Cardoza-Moore said of the new model legislation in December. “Each state will be slightly different … each draft will be specific to the state legislature that’s introducing it.”

Pratheek Rebala contributed to this report.