Sen. Sherrod Brown, D-Cleveland, voted against a foreign policy bill that includes a provision codifying security assistance funds for Israel, citing First Amendment concerns with a provision in the bill that gives U.S. companies legal authority to boycott companies that boycott Israel.

The U.S. Senate approved the bill Feb. 5, which codifies a 2016 agreement between former President Barack Obama and Israeli Prime Minister Benjamin Netanyahu for $38 billion in defense aid for 10 years, and includes provisions that enhance sanctions on Syria and reaffirm a defense alliance with Jordan. 

The bill, sponsored by Sens. Marco Rubio, R-Fla., and Joe Manchin, D-W. Va.,

was the first bill taken up by the new Senate following the new year and a lengthy government shutdown. It passed, 77-23, with several Democrats and one Republican voting against the bill. 

Brown provided the following statement to the Cleveland Jewish News, explaining why he voted against the bill:

“I strongly support additional security cooperation with Israel and Jordan and holding the Assad regime accountabl. However, recent court cases in Kansas and Arizona have raised First Amendment concerns with state laws, therefore, I believe we need to pause on enacting federal legislation while the issue is still pending in court.”

It now heads to the U.S. House of Representatives for approval, though whether it will be approved in that body is unclear. It is possible the Democratic leadership in the House will break up the bill into smaller sections, with the section regarding the anti-BDS laws the least likely to be considered. Even if the anti-BDS portion of the bill were to be approved by Congress, two similar anti-BDS laws have been found unconstitutional by federal judges, as mentioned by Brown in his statement.

“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” U.S. District Court Judge Diane Humetewa of Arizona wrote in her decision on Sept. 27, 2018, on a case of an attorney who contracted with the state to provide legal services for incarcerated people but lost the contract after refusing to sign an oath pledging not to boycott Israel.

Among the Democratic Senators to vote “no” were declared presidential candidates Elizabeth Warren of Massachusetts, Kirsten Gillibrand of New York, Cory Booker of New Jersey and Kamala Harris of California. Possible presidential contenders Bernie Sanders of Vermont and Brown also voted against the bill. The lone Republican to vote against the bill was Rand Paul of Kentucky. Democratic minority leader Charles Schumer of New York voted for the bill.

In a New York Times column on Feb. 6, Rubio defended the bill against charges that it would violate free speech. The bill was also heavily supported by the American Israel Public Affairs Committee, which urged the House to pass all the provisions in the bill.

“The legislation has no impact on the right of Americans to personally boycott Israel or oppose Israeli policies,” AIPAC said in a statement. “The bill’s scope is limited to commercial activities between companies and state and local governments.”

The bill was blasted by The American Civil Liberties Union.

“The Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans,” the ACLU said in a statement.

JTA contributed to this story.

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