Update: Gov. Wolf Signs Anti-BDS Legislation Into Law

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Note: This post has been updated to reflect the Gov. Wolf’s recent action. Nov. 4, 2016, 2:54 p.m.

A little less than a month after California Gov. Jerry Brown signed a bill against the boycott, divestment and sanctions (BDS) movement, the Pennsylvania Senate passed a similar bill by a vote of 47 to 1. (Sen. Art Haywood was the single “no” vote.)

After an affirmative concurrence vote in the House, Pennsylvania HB 2107 went to Gov. Tom Wolf’s desk. On Nov. 4, he signed it.

With the enactment of the bill, Pennsylvania becomes the 14th state to pass anti-BDS legislation.

The prime sponsor of the bill was state Rep. Matthew E. Baker, a Republican serving Tioga County and parts of Bradford and Potter counties. Baker issued a statement after Gov. Wolf signed it.

“By passing and signing this legislation into law, we are also reaffirming Israel’s right to exist as a Jewish state in peace, security, stability and prosperity and at the same time acknowledging their many contributions in medicine, technology and leadership in fostering equality and opportunity for all,” Rep. Baker said. “Pennsylvania has a long and historic relationship with the Jewish people and the land of Israel. Those who are making efforts to disrupt Israel’s economy, boycott companies that do business with Israel, boycott companies within Israel and in areas under its control also advocating for divestiture, are doing nothing short of waging a war of economic genocide against the Jewish state.”

The bill — which also addresses questions regarding public access to procurement records and awarding a contract to a single source — contains anti-BDS language within the context of prohibited contracts.

The bill asserts that “Israel is America’s dependable, democratic ally in the Middle East, an area of paramount strategic importance to the United States” and that “it is in the interest of the United States and the commonwealth to stand with Israel and other countries by promoting trade and commercial activities and to discourage policies that disregard that interest.”

For that reason, a company contracted by the commonwealth is not permitted to be involved in a boycott — defined in the bill as “to blacklist, divest from or otherwise refuse to deal with a person or firm when the action is based on race, color, religion, gender or national affiliation or origin of the targeted person or entity.”

Matt Handel, chairman of the Pennsylvania Jewish Coalition, which was instrumental in getting the bill passed, was optimistic that Wolf would sign it into law when asked last week.

“We’re feeling very excited about the news,” said Handel, shortly after the Senate and House votes were announced. “I will say that Gov. Wolf has always been very supportive of the causes of the Jewish community, and we fully expect that he’ll support this.”

Handel said this is just the most recent example of Pennsylvania’s affirmative support for the state of Israel.

“This is part of a long-term trend from the government of Pennsylvania that basically supports Israel and these causes,” he said. “We’ve had terror-free investment that was passed several years ago. There’s been support for Holocaust education and support for terror-free procurement.

“We have a [state] government that has stated quite clearly that they don’t want to do business with potential enemies of Israel. They don’t want to procure from companies that potentially do business with the enemies of Israel. With this BDS statement, they’re taking the next logical step and saying, ‘We don’t want government funds used to target Israel unfairly.’”

Jacob Millner of the Israel Project — a national nonpartisan educational organization that has pursued anti-BDS legislation across the country — said he was also optimistic about the final passage of the bill.

“I feel good about it. I’m pretty confident, though I don’t like to count my chickens before they hatch. But Pennsylvania has a lot of organizations who have done a lot of good work on making this happen.”

Millner said the Pennsylvania bill was noteworthy because “it’s important that states make a statement on the right side of history, that they won’t invest their money or spend state money on companies that would engage in anti-Israel and anti-Semitic [activities].”

Millner called BDS “a form of economic warfare against the only Jewish state,” and added, “the state wouldn’t condone a company that would discriminate against African-Americans, women, or gays and lesbians, and discrimination based on national origin is similar. The state has to take a stand on that.”

The American Civil Liberties Union (ACLU) has voiced its opposition to the bill, which would make it possible for the state to defund universities that endorse on-campus BDS movements.

In a letter to U.S. Reps. Kay Granger and Nita Lowey, chair and ranking member, respectively, of the State and Foreign Operations Appropriations Subcommittee, the ACLU’s director Karin Johanson and chief of staff/First Amendment counsel Michael Macleod-Ball objected to “any proposed amendment to the State and Foreign Operations Appropriations bill that would condone state laws penalizing businesses and individuals who express support for a boycott, divestment, or sanctions (‘BDS’) against Israel.”

The reason for this opposition, they wrote, was grounded in the belief that “states should not be deciding with whom they should do business on the basis of ideological predisposition. This is especially true where the ideological position has no connection whatsoever with the business relationship at stake.”

Johanson and Macleod-Ball went further by saying, “Make no mistake: the underlying state bills discriminate solely on the basis of the viewpoint of those impacted.” There are many businesses and individuals who do no business with Israel, they noted, but “only those who affirmatively express support for the BDS movement are barred from state contracts and investments even though there are others who refrain to the very same extent. They are penalized solely because they choose to express their opinion and because their opinion is disfavored by the political class in the states in question.”

This punishment, the two wrote, “flies in the face of the First Amendment’s guarantee that the state should impose no law infringing on the right to speak freely and to associate with those of like minds.”

The Pennsylvania chapter of the ACLU also voiced its opposition in a memo to the state Senate.

ACLU-PA Legislative Director Andy Hoover addressed the Pennsylvania bill specifically: “Boycotts can be a form of political expression and are recognized as expression under the First Amendment,” he wrote. “American history includes prominent boycotts that drew attention to important civil and human rights issues, from slavery to the civil rights era to apartheid South Africa.

“HB 2107 could be enforced in a way that exerts governmental punishment for protected expression. And it is clear from the preamble of that section of the bill that it is, indeed, intended to punish contractors for their political views and expression, specifically as it relates to the debate about Israel and Palestine. It even requires companies to certify that they are not engaged in such a boycott, like some kind of 21st century loyalty oath.”

The ACLU has no stated position on the Israeli-Palestinian conflict. But, Hoover wrote, “Our mission is to protect the constitutional rights of everyone.”

The Pennsylvania Jewish Coalition disagrees with the notion that the bill hinders free speech. “Any company can say, write or publish any statement against Israel they wish,” they noted in a statement. “Companies cannot formally perform a boycott, divestment or sanction against Israel if they wish to do business with the commonwealth.”

“This bill was really crafted to respect free speech,” Handel added, “but [also] to ensure that state funds are not used in a way that we consider to be discriminatory.”

The Consul General of Israel in New York, Ambassador Dani Dayan, has released the following statement:

“Amb. Dani Dayan, Consul General of Israel in New York, wishes to express his heartfelt appreciation for the people of Pennsylvania and their representatives in the House and Senate Chambers for their overwhelming support for a bill to boycott those who boycott Israel. In endorsing this important legislation, the Commonwealth of Pennsylvania has not only stood up for the sacred bonds of brotherhood and friendship with the people of Israel, but also for the principles of Justice and Peace in the Middle East. The close cooperation between Israel and Pennsylvania reflects not only shared values but shared interests of innovation and prosperity.”

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