Joseph Sabag, attorney and executive director of IAC For Action, an affiliate of the Israeli-American Council (IAC), spoke to a July 22 Middle East Forum Webinar about anti-Boycott, Divestment and Sanction (BDS) laws and other policy efforts to oppose commercial boycotts of Israel.
Since 2015, anti-BDS legislation promoted by Sabag, which former Israeli prime minister Netanyahu dubbed the "Economic Iron Dome," has been enacted in thirty-six states in the U.S.
The anti-BDS legislative campaign has its roots in the Florida State House where Sabag began his career as special counsel for House Majority Leader Adam Hasner.
Hasner, along with Florida House Speaker Marco Rubio, worked to pass legislation banning the state from doing business with Iran. Florida's Iranian boycott law, which was passed in 2011, prompted the emergence of a "trickle up" policy-making model, Sabag said.
"It's the idea that enough states can join together in creating an expression of policy that can ripen and issue, define the response to that issue and then put Congress into a position where it has to ... react in a way that's consistent with the states themselves," he said.
The emergence of this "trickle up" strategy, coincided with the growing prominence of pro-Israel Christians into the realm of policy. Taken together, the two factors presented an opportunity to counter the BDS movement that targeted Israel on a state-by-state basis, Sabag said.
While working as director for the International Israel Allies Caucus in Washington, D.C. in 2014, Sabag recognized that the BDS movement had become a growing threat during the Obama Administration. The realization struck home when U.S. Secretary of State John Kerry invoked the threat of BDS to force Israel to make concessions to the Palestinians.
Sabag said the laws in Israel, as well as in the U.S., were not equipped to deal with the threat. The U.S. Export Administration Act passed in the 1970s only addresses state-sponsored boycotts against Israel — not boycotts organized by non-state actors. This provided an opening to non-governmental organizations to promote BDS on behalf of the Palestinian Authority in the early 2000s. To make matters worse, BDS activists took advantage of the gridlock that hindered Congress during the Obama Administration to promote their cause unchallenged.
In response, Sabag, joined forces with Eugene Kontorovich in Israel and South Carolina legislator Alan Clemmons, to apply the "trickle up" model at the state level to counter BDS.
The trio applied two strategies. The first strategy, called the "contracting model," was to prohibit those who did business with state governments to from participating in the BDS campaign against Israel. The second strategy, called the "divestment model" was for states to divest from companies that participated in the BDS movement campaign against Israel.
"The contracting model, just in terms of enforcement, would ultimately impact revenue streams of a company that chose to boycott Israel," Sabag said, adding that the divestment model had an impact on the share prices of targeted companies.
"We saw that in the case of Unilever, if you just take a look at their share pricing from the day that Ben and Jerry's announced their boycott policy until the day that Unilever announced they were overriding that policy just two and a half weeks ago, you watched Unilever lose somewhere in the neighborhood of about $25 billion worth of market capitalization," he said.
Florida became the first state to use both the contracting and divestment models to create a protective atmosphere for trade and relations, Sabag said. In ensuing years, thirty-six other state legislatures ensured that local companies that did business with Israeli trade would be able to do so without harassment from the BDS activists. Trade between the states and Israel includes such wide-ranging markets as "pharmaceuticals and health sciences, all aspects of defense ... disaster relief and agriculture," Sabag said.
From 2016 through 2018, the implementation of anti-BDS laws by Florida's Governor DeSantis's trade mission resulted in an almost thirty percent increase in trade with Israel. Arizona's trade office reported similar increases.
"The benefits clearly are there," Sabag said. "Businesses that are looking to operate without this kind of outside interference [introduced by the BDS movement] understand there are certain states that have been protections."
The American Civil Liberties Union (ACLU) challenged the anti-BDS legislation, suggesting private persons have first amendment free speech rights to engage in commercial discrimination on the basis of national origin. Ironically enough, the same organization argued against the right of a Christian baker to refuse service to a gay couple, claiming the merchant had no private first amendment free speech right to discriminate based on sexual orientation.
And yet the ACLU supports private free speech rights when it applies to boycotting Israel, Sabag noted.
"So clearly, we saw the ACLU begin to take shape as what I think unfortunately is pretty much the official de facto law firm for antisemitism in the United States," he said.
The Eighth Circuit court's recent ruling in Arkansas Times v. Waldrip, which upholds the constitutionality of anti-BDS laws, should serve to blunt actions by ACLU and BDS activists against Israel, Sabag reported.
Sabag lamented that some of the opposition to anti-BDS policy and legislation came from the older and bigger legacy organizations in the pro-Israel community.
"A lot of the productivity in the policy space, certainly in terms of U.S.-Israel affairs, is coming form organizations that are really only 15 to 20 years old," he said. "The fragmentation, the territorialism, and frankly the stubbornness of some of the older organizations to innovate and adapt to new challenges definitely made things a bit harder along the way."
Sabag is gratified that thirty-six states have passed anti-BDS legislation, but is not worried about getting similar laws passed in the remaining fourteen states.
"I think that we've reached the point where the law of diminishing returns kicks in. I think there some states where it makes no sense in trying ... Washington, Oregon, Vermont, those types of states," he said. "The larger state economies and the states that enjoy the most trade with Israel have already taken on these laws."
The next step in the battle against antisemitism, Sabag said, is to confront its manifestation as criminal or unlawful discriminatory conduct against Jews, Sabag suggested. Activists have successfully lobbied to have the definition of antisemitism put forth by the International Holocaust Remembrance Alliance (IHRA) in 2016 codified by legislatures in Arizona, Iowa, South Carolina and Tennessee, he said.
"Most of the states right now are lacking a uniform definition of antisemitism," Sabag said. "The importance of IHRA is that it helps to expose national origin driven antisemitism, which we would say is much more of the contemporary style as opposed to religious-based antisemitism, which is more of the classic style."
The application of IHRA's definition will become an important priority for the Jewish community in the days ahead because it provides a basis for state officials charged with investigating unlawful discriminatory conduct with a framework that does not allow antisemites to argue they were merely protesting Israeli policies when they were in fact, using Israel as a pretext to target Jews, Sabag said.
Nevertheless, celebrating and cementing the successful campaign against BDS remains a priority, Sabag said.
"We really want to make a lot of noise about Unilever and to celebrate the fact that Ben and Jerry's has been overridden by its parent corporation so that no other companies choose to find themselves in Unilever's position," he said. "S to that extent we're thanking lawmakers who made these laws and financial officials who enforce these laws. We've got to make a lot of noise."
Marilyn Stern is communications coordinator at the Middle East Forum.