Liz Essley Whyte
USA Today / May 1, 2019
The front lines in a bitter debate between Israel’s defenders and critics 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 past 14 years across the globe and in the USA, particularly on university campuses.
In response, pro-Israel advocates have taken the battle to state legislatures, where their lobbyists worked with sympathetic lawmakers to shut down an effort they said threatens the existence of a Jewish state.
A rapid succession of states – 27 in four years – adopted measures to curb the initiative known as BDS.
These new laws and executive orders were crafted by activists, then copied from one state to the next and 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 state capitols, the Center for Public Integrity and USA TODAY examined dozens of anti-boycott bills and executive orders, then traced the communication between pro-Israel lobbyists and lawmakers who supported their efforts.
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In Louisiana, emails obtained by the center show that a lobbyist for a Jewish Federation wrote the governor’s anti-boycott executive order and news 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 the anti-boycott legislation Clemmons sponsored 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 build on goodwill generated from years of courting state officials with – sometimes free – trips to Israel. The Israeli government then writes to thank state officials instrumental in passing the measures.
Pro-Israel groups urge 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 push for passage of measures to undermine pro-Palestinian activism on college campuses.
Some anti-boycott activists 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,” Noah Pollak said in 2016. “While you were doing your campus antics, the grown-ups were in the state legislatures passing laws that make your cause improbable.”
The anti-boycott measures are a largely successful effort to embed controversial foreign policy into state law, short-circuiting public discourse about Israel, to the detriment, some say, 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 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 10th 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 newfound zeal to promote his cause overseas.
Backers say the anti-boycott laws fit with the United States’ long-standing alliance with Israel and clamp down on discrimination against Israelis. Attacks on Jews jumped by 37% in 2017, according to the FBI, and they’ve since grown more deadly. In October 2018, a gunman killed 11 people at Pittsburgh’s Tree of Life synagogue.
“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., that would 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 amounts to an inhumane form of apartheid. They say the anti-boycott state laws help insulate Israel from legitimate criticism.
“They’re attacking individuals’ and even companies’ and non-profits’ ability to engage on this issue through First-Amendment-protected activities,” said Dima Khalidi, director of Palestine Legal, a group that 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 pits 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 an 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 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.
In Nevada, Lt. Gov. Mark Hutchison worked closely with a pro-Israel lobbyist, Dillon Hosier, to craft and pass the bill modelled 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 travelled 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 the American Israel Public Affairs Committee, a pro-Israel lobbying group. Israel is a common destination for state officials, including 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.
An assemblywoman supporting the Nevada bill asked for the lieutenant governor’s thoughts on her planned testimony. His office forwarded the testimony to Hosier.
“Hits all the right notes,” the lobbyist replied.
Hosier worked for the Israeli-American Coalition for Action, a Los Angeles-based advocacy group that works to strengthen U.S.-Israeli ties. A board member of the group, Adam Milstein, said in a speech in 2017 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, 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 mega-donors Sheldon and Miriam Adelson.
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 Rep. 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 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.”
In 2017, Clemmons, 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 moved to the IAC for Action, said he often helps legislators who ask for his expertise.
George Mason University law professor Eugene Kontorovich helped draft the bill and went on to assist other states with their anti-boycott measures and frequently defends the laws’ constitutionality in the news media.
“One man’s boycott is another man’s discrimination,” Kontorovich said.
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 announced it was combining the South Carolina and Illinois bills into “one piece of model legislation.” Clemmons said he urged lawmakers in other states to copy his bill.
Hosier, who left IAC for Action to help start a new Israeli American advocacy organization, criticized some of the model anti-boycott legislation. At least five states passed laws mimicking South Carolina’s prohibition on Israel-boycotting contractors, which he said is unconstitutional.
In Louisiana, Democratic Gov. John Bel Edwards did not write his anti-boycott executive order nor the news release accompanying it. Both drafts were sent to him by Mithun Kamath, a pro-Israel advocate 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 was 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 news release were nearly word-for-word what the federation had delivered.
The federation hired powerful Louisiana lobbyist Ryan Haynie, who emailed a pro-Israel speech drafted for the governor, though it’s unclear whether 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, are fixtures in Louisiana politics and have represented everyone from tech titan Apple to tobacco giant Altria.
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 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. 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 urging their schools to cut ties with companies “complicit in Israeli violations of Palestinian human rights.”
They have persuaded cities such as Berkeley, California, to divest from companies such as G4S, which was 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 more success in Europe, where the European Union requires goods made in Israeli settlements to be labeled as such.
Many of those harmed by state anti-boycott laws practice relatively quiet expressions of BDS activism, such as a Texas poet who boycotts Sabra hummus, partially owned by an Israeli company, or a 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, predicted that the statehouse countermovement will backfire and actually strengthen BDS in the USA.
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.
The Israeli government 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,” Israeli Minister of Information Gilad Erdan wrote to Ohio Gov. John Kasich in December 2016 after an anti-boycott bill 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 helped pass that state’s anti-boycott bill: “Great job, as always.”
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.
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 passed the anti-boycott pension measures came up with only a handful of companies to divest from, but state pension funds still feel the anti-boycott pressure.
Milstein, the Israeli-American Coalition for Action board member, 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 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 its responsible investment policy prompted it to cut ties with many companies, including two in Israel.
Last year, pro-Israel groups unsuccessfully pushed Florida to cancel singer Lorde’s concerts after she cancelled 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 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 behaviour 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.
Last year, South Carolina became the first state to adopt the broad anti-Semitism definition by including it in a plank of its budget that is valid for one year. Emails requested by the Center for Public Integrity show that Sabag and Clemmons again teamed up to urge lawmakers to adopt the definition.
Proclaiming Justice to the Nations planned bills in Florida, Ohio and Tennessee this year. The Tennessee bill has been introduced; 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.”
Liz Essley Whyte – Center for Public Integrity
Contributing: Pratheek Rebala
Note: This story was produced as part of the COPY, PASTE, LEGISLATE series, which is a partnership between USA TODAY, the Arizona Republic and the Center for Public Integrity – a non-profit, non-partisan investigative media organization in Washington, D.C.