BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2844 (Bloom)
Version: June 20, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Public contracts: discrimination
DESCRIPTION
This bill would require a person that submits a bid or proposal
to, or otherwise proposes to enter into or renew a contract
with, a state agency, as defined, to certify, under penalty of
perjury, that it has complied with the Unruh Civil Rights Act
and the Fair Employment and Housing Act, and that any policy
against a Sovereign nation or peoples, including, but not
limited to, the nation and people of Israel, are not used as a
pretext in violation of those laws. The provisions requiring
self-certification would apply to contracts in the amount of
$100,000 or more. This bill would authorize the Attorney General
to receive and investigate complaints regarding violations of,
and to bring suit to enforce, these provisions. Lastly, this
bill would set forth various findings and declarations regarding
the state's anti-discrimination policies and First Amendment
rights of individuals, as specified.
BACKGROUND
According to various reports, numerous states across the country
have taken action in the last year to withdraw state support for
companies participating in a boycott of the State of Israel,
known as the Boycott, Divestment and Sanctions (BDS) movement.
The BDS Movement website describes BDS as "[t]he global movement
for a campaign of Boycott, Divestment and Sanctions (BDS)
against Israel until it complies with international law and
Palestinian rights [ . . . ]. BDS is a strategy that allows
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people of conscience to play an effective role in the
Palestinian struggle for justice. [ . . . ] The campaign for
[BDS] is shaped by a rights-based approach and highlights the
three broad sections of the Palestinian people: the refugees,
those under military occupation in the West Bank and Gaza Strip,
and Palestinians in Israel. The call urges various forms of
boycott against Israel until it meets its obligations under
international law by: (1) [e]nding its occupation and
colonization of all Arab lands occupied in June 1967 and
dismantling the Wall; (2) [r]ecognizing the fundamental rights
of the Arab-Palestinian citizens of Israel to full equality; and
(3) [r]especting, protecting and promoting the rights of
Palestinian refugees to return to their homes and properties as
stipulated in UN Resolution 194." (BDS Movement, Introducing the
BDS Movement [as of Jun. 25,
2016].)
According to reports and information provided by the author,
legislatures across the country are enacting bills in a display
of disapproval of the BDS movement. The author cites among the
states that have passed laws the states of Florida, South
Carolina, Indiana, Iowa, Illinois, Colorado, and Arizona, and
notes that a handful of others are considering pending
legislation on this issue as well. As described in one article:
The trend began last year, when both Illinois and South
Carolina virtually unanimously passed bills withdrawing state
support for companies participating in BDS. South Carolina's
bill wasn't targeted towards Israel specifically, but
prohibited state contracting with companies participating in
boycotts based on race, religion or ethnicity. Illinois' bill
was more direct - the state pension fund would divest from any
companies refusing to do business in Israel or in the
territories.
This year, however, the pace has picked up considerably.
First, Indiana passed a pension divestment bill that Gov. Mike
Pence (R) signed this week. Then, in February, Florida
enacted a law prohibiting contracting and implementing
divestment at the state and local levels, also irrespective of
the Green Line. Arizona passed a similarly strong bill. And
Colorado's governor signed a law mandating pension divestment
from BDS companies.
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[ . . . ] Georgia is currently considering a bill that would
end state contracting with BDS companies. Iowa and California
are both hearing similar bills, and bills are likely to be
introduced soon in other states, as well. (Sharf, BDS on the
Run in State Legislatures, The Hill (Mar. 28, 2016) <
http://thehill.com/blogs/congress-blog/274202-bds-on-the-run-in
-state-legislatures> [as of Jun. 24, 2016].)
This bill, as it was initially drafted, sought to limit the
ability of individuals who boycott to enter into contracts with
the State. As it evolved, the bill went on to instead prohibit
contracting with companies engaging in discriminatory business
actions in furtherance of a boycott of a sovereign nation or
peoples, including, but not limited to, the nation of Israel. A
more recent version of this bill would have required that the
Attorney General maintain a list of companies that engage in
discriminatory business practices in furtherance of a boycott.
Before this Committee is now a version that reflects the
author's attempt to strike a compromise, recognizing the right
of individuals and businesses to exercise their
constitutionally-protected freedoms (whether they are of free
speech, or religion, or otherwise), but also the right of the
State to select its business partners as a market participant,
and its obligation to ensure it does not use tax payer money to
fund individuals who discriminate in violation of this State's
major anti-discrimination laws.
CHANGES TO EXISTING LAW
Existing law , Section 11135 of the Government Code, prohibits
any person in this state from being unlawfully denied, on the
basis of race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic
information, or disability, full and equal access to the
benefits of, or the unlawful discrimination under, any program
or activity that is conducted, operated, or administered by the
state or by any state agency, is funded directly by the state,
or receives any financial assistance from the state. (Gov. Code
Sec. 11135(a).)
Existing law , Section 11135, imports various definitions from
FEHA and the Unruh Civil Rights Act for certain protected bases,
including "disability," "sex or sexual orientation," and
"genetic information." (Gov. Code Sec. 11135(c)(1), (e), (g).)
Existing law provides, for these purposes, that "race, national
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origin, ethnic group identification, religion, age, sex, sexual
orientation, color, or disability" includes a perception that a
person has any of those characteristics or that the person is
associated with a person who has, or is perceived to have, any
of those characteristics. (Gov. Code Sec. 11135(f).)
Existing law , the Unruh Civil Rights Act, provides that all
persons in California are free and equal, and regardless of a
person's sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments. (Civ. Code Sec. 51.) Existing
law defines "sex" to include, but not be limited to, a person's
gender, which, in turn, includes a person's gender identity and
gender expression, as specified. (Civ. Code Sec. 51(e)(5).)
Existing law , the Unruh Civil Rights Act, provides definitions
for various protected bases and imports certain definitions from
FEHA. (Civ. Code Sec. 51(e).) The Unruh Civil Rights Act,
further provides that "sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, sexual orientation, citizenship,
primary language, or immigration status" includes a perception
that the person has any particular characteristic or
characteristics within the listed categories or that the person
is associated with a person who has, or is perceived to have,
any particular characteristic or characteristics within the
listed categories. (Civ. Code Sec. 51(e)(6).)
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment on the basis
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status. (Gov. Code Sec. 12920 et seq.)
Existing law , FEHA, provides specific definitions for various
protected bases (Gov. Code Sec. 12926) and further provides that
"race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, age, sexual
orientation, or military and veteran status" includes a
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perception that the person has any of those characteristics or
that the person is associated with a person who has, or is
perceived to have, any of those characteristics. (Gov. Code
Sec. 12926(o).)
Existing law provides that whenever there is reasonable cause to
believe that any person or group of persons is engaged in
conduct of resistance to the full enjoyment of any civil or
personal rights, as specified, and that conduct is of that
nature and is intended to deny the full exercise of those
rights, the Attorney General, any district attorney or city
attorney, or any person aggrieved by the conduct, may bring a
civil action in the appropriate court by filing with it a
complaint. (Civ. Code Sec. 52(c).)
Existing law , the Public Contract Code, requires that bidders or
persons entering into contracts with the state to sign various
statements or certify various matters under penalty of perjury.
For example, the existing code:
Authorizes a state entity to require, in lieu of specified
verification of a contractor's license before entering into a
contract for work to be performed by a contractor, that the
person seeking the contract provide a signed statement which
swears, under penalty of perjury, that the pocket license or
certificate of licensure presented is his or hers, is current
and valid, and is in a classification appropriate to the work
to be undertaken. (Pub. Contract Code Sec. 6100(b).)
Requires specified departments under the State Contract Code
to require from all prospective bidders the completion, under
penalty of perjury, of a standard form of questionnaire
inquiring whether such prospective bidder, any officer of such
bidder, or any employee of such bidder who has a proprietary
interest in such bidder, has ever been disqualified, removed,
or otherwise prevented from bidding on, or completing a
federal, state, or local government project because of a
violation of law or a safety regulation, and if so to explain
the circumstances. (Pub. Contract Code Sec. 10162.)
Requires every bid on every public works contract of a public
entity to include a noncollusion declaration under penalty of
perjury under the laws of the State of California, as
specified. (Pub. Contract Code Sec. 7106.)
Requires every contract entered into by a state agency for the
procurement of equipment, materials, supplies, apparel,
garments and accessories and the laundering thereof, excluding
public works contracts, to require a contractor to certify
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that no such items provided under the contract are produced by
sweatshop labor, forced labor, convict labor, indentured labor
under penal sanction, abusive forms of child labor, or
exploitation of children in child labor. The law further
requires contractors ensure that their subcontractors comply
with the Sweat Free Code of Conduct, under penalty of perjury.
(Pub. Contract Code Sec. 6108.)
This bill would require a person that submits a bid or proposal
to, or otherwise proposes to enter into or renew a contract
with, a state agency with respect to any contract in the amount
of one hundred thousand dollars ($100,000) or more to certify,
under penalty of perjury, at the time the bid or proposal is
submitted or the contract is renewed, all of the following:
that they have complied with the Unruh Civil Rights Act;
that they have complied with FEHA; and
that any policy that they have against any sovereign nation or
peoples recognized by the government of the United States,
including, but not limited to, the nation and people of
Israel, is not used as a pretext for discrimination in
violation of the Unruh Civil Rights Act or FEHA.
This bill would authorize the Attorney General to receive and
investigate complaints regarding violations of, and may bring
suit to enforce the provisions, above.
This bill would set forth various findings and declarations,
including, among other things, the following:
California is a leader in protecting civil rights and
preventing discrimination;
California's robust nondiscrimination laws include protections
on the basis of religion, race, national origin, sex, sexual
orientation, gender identity, gender expression, and
disability, among other characteristics;
California's strong public policy against discrimination is
reflected in numerous statutes, including the Unruh Civil
Rights Act and FEHA, as specified. Section 11135 of the
Government Code specifically prohibits discrimination on the
basis of many of these same characteristics in the conduct,
operation, or administration of any program or activity that
is by the state or by any state agency, funded directly by the
state, or receives any financial assistance from the state.
both freedom of speech and religion are cornerstones of law
and public policy in the U.S., and the Legislature strongly
supports and affirms these important freedoms;
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the exercise of one's First Amendment rights is not a
justification for engaging in acts of discrimination;
California has significant influence in the marketplace. The
state at times operates not as a market regulator, but as a
market participant, and in this latter role it may determine
that companies engaging in discriminatory actions in the
conduct and operation of their business adversely affects the
state's procurement activities and places the state in a
position of supporting activities that could be seen as a
violation of the nondiscrimination policies of the State of
California; and
it is intent of the Legislature to ensure that taxpayer funds
are not used to do business with or otherwise support any
state or private entity that engages in discriminatory actions
against individuals under the pretext of exercising First
Amendment rights. This includes, but is not limited to,
discriminatory actions taken against individuals of the Jewish
faith under the pretext of a constitutionally protected
boycott or protest of the State of Israel.
COMMENT
1. Stated need for the bill
According to the author:
Since 2004, organized campaigns around the world have promoted
a policy of Boycott, Divestment and Sanctions (BDS) against
Israel. Campaigns have been launched demanding the
"divestment" of university, municipal, church, union and other
investment portfolios from companies that do business with
Israel, as well as the banning of Israeli products,
professionals, academics, academic institutions and artistic
performances (in Israel and abroad). The arbitrary nature of
these boycotts and divestments has caused concern about
financial uncertainty within investment portfolios and has
caused corporations to stray from their fiduciary
responsibilities.
In July 2015, the Legislature affirmed its support for [a
memorandum of understanding (MOU) between the Governor of
California and the Prime Minister of Israel for strategic
partnerships for joint innovation, exchanges, and cooperation
between California and Israel] by passing SCR 25, noting that
participants in the MOU had already expanded cooperation
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between Israel and California in areas such as alternative
energy, agriculture, business innovation, and academia, and
declaring that collaboration with Israel will foster peace and
democracy in the Middle East.
Companies adhering to boycotts of Israel undermine the
aforesaid policy and purpose of encouraging trade, business,
and academic cooperation between California and Israel.
Therefore, it is in the best interest of the State of
California that it not contract with any company participating
in a boycott of Israel.
Although the state has affirmed its relationship with Israel
through SCR 25, it has yet to take any binding action on the
BDS movement. Numerous states around the country have passed
such legislation and California, as one of Israel's partners,
cannot stay silent.
The Jewish Public Affairs Committee of California (JPAC) writes
in support of the current bill, noting the bill now requires
compliance with "two landmark civil rights laws that prohibit
discrimination based on race, religion, sexual orientation, age,
and a number of additional categories" as well as the
requirement that any policy against a sovereign nation or
peoples, including but not limited to the nation and people of
Israel, is not used a pretext for discrimination in violation of
those two laws. JPAC encourages the Legislature and elected
officials to formally increase economic and cultural ties
between California and Israel, and expresses support for the MOU
between the Governor and the Prime Minister of Israel. JPAC
asserts that the BDS "campaign seeks not only to damage this
important relationship[,] but also to demonize and isolate
Israel on our campuses, in our communities, and on the world
stage. Moreover, BDS does not further efforts to negotiate a
lasting peace for the people of Israel and the Palestinians, but
rather seeks to isolate one party rather than build trust and
goodwill between both. With recent BDS efforts intent on
harming public opinion of and delegitimizing Israel, there is no
more critical time to pass this legislation."
Also in support, 30 Years After, an Iranian-American Jewish
civil organization, writes that "[w]hen companies participate in
boycotts against Israel, they misguidedly single out Israel for
unfair treatment and lend support to nefarious anti-Semitic
movements across the world that aim to delegitimize Israel.
Entering into contracts with such companies is not in the
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interests of California or the United States."
The Sacramento Jewish Community Relations Council (JCRC) also
believes that this bill is consistent with the MOU between this
State and Israel, and adds in support that, "[t]he Boycott,
Divestment, and Sanctions (BDS) movement promotes falsehoods
against the Jewish State and also rejects the accepted view of a
two-state solution. Those involved with BDS are not interested
in peace and security for Israelis and Palestinians; rather
their goal is to isolate and delegitimize the State of Israel.
Those companies who boycott or divest from Israel are hindering
any chances for peace by creating economic hardships for both
Israelis and Palestinians."
2. Bill now distinguishes between boycotts and unlawful
discrimination
As noted in the Background, this bill began as legislation that
was intended to prohibit public entities in the State of
California from entering into contracts with any companies that
participate in a boycott of Israel. The bill, however, has
gradually evolved, in what appears to be recognition by the
author that there is a substantial difference between the
government refusing to contract with someone who engages in an
illegal practice, on the one hand, and the government refusing
to contract with someone who engages in a legal boycott, on the
other hand. As recently amended, the bill in no way prohibits
any action based upon the boycott activities of an individual,
nor does the bill require a state "list" of those who boycott.
While the term "boycott" remains a point of contention for the
opposition, staff notes that it is only mentioned in uncodified
intent language describing the intent of the Legislature to
ensure that taxpayer funds are not used to do business with or
otherwise support entities that engage in discriminatory actions
against individuals under the pretext of exercising First
Amendment rights. That language provides, by way of example,
that this includes, but is not limited to, discriminatory
actions taken against individuals of the Jewish faith under the
pretext of a constitutionally protected boycott or protest of
the State of Israel.
The United States Supreme Court, dating as far back as the
1940s, has recognized that the Constitution's rights of speech
and association protect various forms of protest, beginning with
union organizing and the picket line. (See e.g. Thornhill v.
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Alabama (1940) 310 U.S. 88, where the Court recognized the
public's First Amendment interest in open discussion of strikes,
striking down an anti-picketing ordinance as overbroad.) In the
1960s, legal advocates stood on the precedents won by organized
labor to urge the Supreme Court to expand First Amendment
protections to protect civil rights. In 1982, in NAACP v.
Claiborne Hardware, the Court upheld the constitutionality of
NAACP boycotts held in retaliation against businesses that
engaged in race discrimination. The Court recognized the
"importance of freedom of association in guaranteeing the right
of people to make their voices heard on public issues," and held
that the consumer boycotting and picketing in Claiborne Hardware
clearly involved First Amendment activity and thus deserved
protection. (See NAACP v. Claiborne Hardware Co. (1982) 458
U.S. 886.) As explained by the Court, "[t]he established
elements of speech, assembly, association, and petition, 'though
not identical, are inseparable.' Thomas v. Collins [(1945) 323
U.S. 516, 530]. Through exercise of these First Amendment
rights, petitioners sought to bring about political, social, and
economic change. Through speech, assembly, and petition --
rather than through riot or revolution -- petitioners sought to
change a social order that had consistently treated them as
second-class citizens." (Claiborne, 458 U.S. at 911-912.)
While this long-standing Supreme Court case law upholds boycott
as a protected form of First Amendment activity, as with all
rights, the right does not exist in a vacuum and can at times
conflict with the rights of others. For example, while the
right might protect picketing or an economic boycott, it does
not protect a right to do so in a violent manner. In this vein,
the First Amendment also does not write a blank check for those
exercising their protected rights to engage in acts of unlawful
discrimination against other individuals on the basis of their
race, sex, gender, or religion, among other things, in their
places of work, school, or government services.
Again, while AB 2844 in its original form would have prohibited
state contracts with businesses that engage in boycotts against
Israel, it now more reasonably reflects a public policy
disfavoring state contracts with businesses or entities that are
not in compliance with the state's anti-discrimination laws.
This is a critical distinction, because while the state can, as
a market participant, decide the terms upon which it will enter
into a contract, there is a question as to what it can base
those decisions on: it is one thing to preclude state contracts
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with a business that actively and unlawfully discriminates
against people on the basis of protected characteristics; it's
another to withhold contracts based solely on political
statements or activities, which is tantamount to penalizing a
person for exercising his or her constitutional rights. This
bill arguably now falls into the former category, thus
minimizing the critical constitutional questions that previously
overshadowed the bill.
Notably, while the opposition suggests that this bill still bars
government contracts with businesses that boycott, staff notes
that the plain text of the Public Contract Code section proposed
by this bill contains no such reference to the term "boycott."
Thus, unless boycotts inherently involve actions that would be
in violation of the Unruh Civil Rights Act or the Fair
Employment and Housing Act, this bill does not, on its face,
prohibit contracting with companies that boycott. To this end,
however, the author may wish to consider further replacing any
references in the findings and declarations to "discrimination"
with "unlawful discrimination," for added clarity.
3. Using taxpayer funds to enter into contracts with
businesses or entities that discriminate in violation of state
anti-discrimination laws would be inconsistent with this
state's strong public policy against discrimination
As noted in the Background, the author has recently amended the
bill to gut and amend the prior version which would have raised
potential questions regarding the First Amendment and chilling
effects of a "blacklist" maintained by the Attorney General.
This bill now represents a compromise which would help ensure
that the state does not enter into contracts that would use
taxpayer dollars to fund entities or businesses that would
discriminate against individuals on protected bases, such as
race, religion, sex, sexual orientation, disability, or
nationality, in violation of California's anti-discrimination
laws, including Unruh or FEHA. Specifically, this bill would
require any person that submits a bid or proposal to, or that
otherwise proposes to enter into or renew a contract of $100,000
or more with a state entity, to certify, under penalty of
perjury, at the time the bid or proposal is submitted, or the
contract is renewed, that they have complied with both the Unruh
Civil Rights Act and the Fair Employment and Housing Act. This
bill would further require that the person certify that any
policy that they have against a sovereign nation or peoples
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recognized by the government of the United States, including but
not limited to the nation of Israel, is not used a pretext for
discrimination in violation of the Unruh Civil Rights Act or
FEHA.
Further, consistent with existing law, which allows the Attorney
General (AG) to bring suits against those businesses in
violation of the Unruh Civil Rights Act, this bill would
authorize the AG to receive and investigate complaints regarding
violations and to bring suit to enforce these provisions.
Notably, the bill leaves any such actions to the discretion of
the AG and does not require that the AG investigate or bring
suit in each instance in which an allegation is made. Thus, if,
for example, the AG does not find the complaint to set forth
sufficient information to launch an investigation, or if upon
investigation the AG does not believe sufficient evidence exists
to bring suit, nothing in this bill would require the AG to take
further actions.
As accurately reflected in the findings and declarations of this
bill, California law evidences a strong public policy of
protecting individuals against discrimination under numerous
statutes, covering a variety of contexts. Together, FEHA and
the Unruh Civil Rights Act operate to prohibit discrimination in
employment, housing, public accommodation, and services provided
by business establishments on the basis of specified personal
characteristics, such as sex, race, color, religion, ancestry,
national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation. (See Gov.
Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh
Civil Rights Act). Separately, Section 11135 of the Government
Code specifically prohibits discrimination on the basis of many
of these same characteristics in the conduct, operation, or
administration of any program or activity that is by the state
or by any state agency, funded directly by the state, or
receives any financial assistance from the state.
Notably, even in the absence of this bill, a company in this
state would have to comply with both the Unruh Civil Rights Act
and FEHA. This bill would merely require that they certify that
they are in compliance with these state anti-discrimination laws
and ensures that the state does not use taxpayer moneys to fund
large scale contracts for goods or services with another entity
or business that does not comply with Unruh or FEHA, which could
be seen as funding discrimination and send contradictory
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messages to the Californians who are protected by those very
laws. If a state agency were to contract with a business or
entity that is not in compliance with these laws, it would not
only undermine the State's strong public policy against
discrimination, but could arguably put the State in the position
of violating Government Code Section 11135 as well. Likewise,
while California may not be able to regulate those companies by
applying California law to out-of-state businesses that do not
do business in the state of California, the State can arguably,
as a market participant, decide that it will not enter into
contracts for goods with those companies if they do not meet its
nondiscrimination standards-again, avoiding the use of taxpayer
moneys to fund entities that engage in activities that would
constitute discrimination if committed in California.
Indeed, while the impetus for the author and proponents of this
bill surrounds the BDS movement and acts of discrimination they
believe are associated with that movement, the underlying
language of this bill applies more expansively, to ensure that
California taxpayer moneys do not fund discrimination on the
basis of any protected characteristic. By way of example, if an
out-of-state company prohibits transgender customers or
employees from using their restrooms in accordance with their
gender or gender identity, pursuant to that other state's laws,
such a company might not be able to certify that they are in
compliance with Unruh or FEHA. As a result, under this bill,
this State can be assured that a state agency could not do
business with that company in amounts over $100,000. However,
if another company in that same state does not engage in such
acts of discrimination which would be tantamount to unlawful
discrimination in California, they could certainly certify that
they are in compliance with California's anti-discrimination
laws and could successfully bid, enter into, or renew a contract
with a California state agency.
Thus, as a matter of public policy, this bill appears to set
forth a principle that California will not partner with and
finance business with entities or businesses that do not meet
this State's strong non-discrimination standards. As a
technical matter, staff notes that the bill, as currently
drafted, potentially suggests that the person seeking to bid on,
enter into, or renew a contract with California would have to
certify that they have always complied with Unruh or FEHA, when
it appears that the author's intent is to ensure that they are
currently in compliance with these laws. To avoid any inference
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that a person would have to certify that they "have [for all of
time] complied with" Unruh and FEHA, the author may wish to
avoid such unintended consequences by simply replacing the
phrases "have complied" with "are in compliance with."
4. Policies used as a pretext for unlawful discrimination
This bill would also require that a person bidding on, renewing,
or entering into a contract with a state entity certify that
they do not have a policy against a sovereign nation or peoples,
including, but not limited to the nation and people of Israel,
that is used as a pretext for discrimination in violation of the
Unruh Civil Rights Act or FEHA.
Notably, some of the opposition to this bill (see Comment 5)
asserts that the bill creates a new crime "if a bidder certifies
under penalty of perjury that 'any policy that they have adopted
against any sovereign nation or peoples recognized by the
government of the United States, including, but not limited to,
the nation and people of Israel, is not used as pretext for
discrimination in violation of the Unruh Civil Rights Act or the
California Fair Employment and Housing Act.'" However, it is
important to note that a person would be guilty under penalty of
perjury only if they falsely certified this fact. Moreover, in
order to be deemed to have falsely certified this fact, it would
not be enough that the person had a policy against the nation
and peoples of Israel or other sovereign nation or peoples-the
language requires that an element of discrimination in violation
of FEHA or Unruh Civil Rights Act exist as well.
5. Opposition
Staff notes that many of the letters of support and opposition
received are in regard to the prior versions of this bill.
Because they have not removed or changed their registered
positions, they remain listed at the end of this analysis. To
the extent letters are quoted in this analysis, they are from
letters submitted specifically in support or opposition to the
current version of the bill.
The Asian Pacific American (APA) Democratic Caucus writes that
it opposes this bill's "attempt to silence non-violent efforts
to speak truth to power," asserting that the bill would
"suppress companies and organizations from using boycott,
divestment, and sanctions (BDS) against any country that the
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United States supports." The APA Democratic Caucus adds that
"[i]t is beyond ironic that the California legislature would
seek to silence the voices of conscience against the powerful
since BDS is a tool that this state and this country have used
against other states and countries when the latter were believed
to be violating human rights."
A group of organizations known as the "Stop AB 2844 Coalition"
writes in opposition that while the "odious [blacklist
provision] of the bill has now been removed" AB 2844 remains
problematic because it: (1) singles out boycotts of Israel; (2)
restores an unconstitutional ban on state contracts with Israel;
(3) targets private entities and not just for-profit businesses;
(4) creates a new crime in violation of the Due Process Clause
for vagueness, (5) caters to the characterization of boycotts
and protests of Israel as "anti-Semitic," (6) unconstitutionally
profiles those who boycott Israel as likely to violate
anti-discrimination laws; and (7) invites Israel-aligned
organizations to file a barrage of complaints with the Attorney
General's office demanding that individuals who boycott Israel
be banned from public contracts and be subjected to criminal
penalties. More specifically, the coalition writes, among other
things, that:
Israel and its supporters have been unable to counter growing
global concern over violations of human rights and violence
against Palestinians under Israeli rule, and the accompanying
grassroots campaigns to apply economic and moral pressure for
change. With AB 2844, the author and supporters seek to
sidestep the public forum and instead legislate against such
nonviolent, protected speech.
[By inserting language relating to the "nation and people of
Israel," this bill] suggests the false and dangerous
conflation of protests against Israeli government policies
with attacks on Jews everywhere, who are sometimes referred to
in a historical, ethnic sense as "the people of Israel" and
whom the government of Israel often claims to represent. It
also suggests that the bill is intended to protect Jews within
Israel and around the world from the imagined discriminatory
acts associated with boycotts of Israel, even though the
anti-discrimination laws referred to in the bill protect
residents of California only. [ . . . ]
AB 2844 (Bloom)
Page 16 of ?
[I]f private entities are subject to the ban, those affected
could include churches affiliated with denominations that have
refused to buy goods made in illegal Israel settlements in the
West Bank or have divested their funds from corporations
complicit in Israel's violations of human rights and
international law. Their state-funded work serving
California's most vulnerable populations could be cut off.
Similarly, unions, student bodies, universities, charitable
foundations or individual socially responsible investors who
support boycott of Israel or divestment from complicit
corporations or institutions could be banned from doing
business with the state.
In its latest iteration, AB 2844 creates a new crime - a
felony - if a bidder certifies under penalty of perjury (as it
requires) that "any policy that they have adopted against any
sovereign nation or peoples recognized by the government of
the United States, including, but not limited to, the nation
and people of Israel, is not used as a pretext for
discrimination in violation of the Unruh Civil Rights Act or
[FEHA]."
The concept of using boycott "as a pretext for discrimination"
has never before been invoked or defined under California law.
By any measure, it is unconstitutionally vague under the Fifth
Amendment's Due Process Clause. The key constructs of the void
for vagueness doctrine were enunciated by the Supreme Court
are as follows:
[T]he terms of a penal statute [...] must be sufficiently
explicit to inform those who are subject to it what conduct on
their part will render them liable to its penalties, ? and a
statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application violates
the first essential of due process of law. [Citing Connally v.
General Construction Co. (1926) 269 U.S. 385, 391.)
[The term pretext] would involve an inquiry into a person's
motivations and subjective intent, and would compel the
Attorney General's office to function as thought police.
Israel-aligned organizations routinely flood university
administrators, the U.S. Department of Education and the
courts with complaints that boycotts and protests of Israel
AB 2844 (Bloom)
Page 17 of ?
are anti-Semitic. [ . . . ] Legislators should be aware of the
floodgates that will open if the latest version of AB 2844 is
passed, and of the burden that will be placed on the Attorney
General's Office both to process complaints and to repeatedly
act as a surrogate for the courts in the arduous task of
trying to determine when protected political speech is somehow
"discriminatory."
Support : Agudath Israel of California; Alpha Epsilon Pi
Fraternity, Inc.; Alpha Epsilon Pi, California Polytechnic State
University, San Luis Obispo; Alpha Epsilon Pi, Chapman
University; Alpha Epsilon Pi, Claremont Colleges; Alpha Epsilon
Pi, CSU, Chico; Alpha Epsilon Pi, CSU, Fullerton; Alpha Epsilon
Pi, CSU, Northridge; Alpha Epsilon Pi, CSU, San Jose; Alpha
Epsilon Pi, UC Berkeley; Alpha Epsilon Pi, UC Davis; Alpha
Epsilon Pi, UC Irvine; Alpha Epsilon Pi, UCLA; Alpha Epsilon Pi,
UC Riverside; Alpha Epsilon Pi, UC Santa Cruz; Alpha Epsilon Pi,
UC Santa Barbara; Alpha Epsilon Pi, UC San Diego; Alpha Epsilon
Pi, San Diego State University; Alpha Epsilon Pi, San Francisco
State University; American Jewish Committee; Arm Organization;
Beit David Congregation; B'NAI B'RITH of Fariborz Matloob; Beth
Abraham; Bruins for Israel; Bruin-Israel Public Affairs
Committee; California Teamsters Public Affairs Council; Chabad
of San Diego State University; City of Beverly Hills; City of
West Hollywood; Cohen Synagogue, Inc.; Concerned Women for
America; Democrats for Israel Los Angeles; Eretz Cultural
Center; ETTA Israel; Hadassah Haifa; Hadassa Malka; J Street;
Iranian Jewish Senior Center; Iranian Jewish Women's
Organization; Israeli-American Council; Israeli-American Nexus;
Jewish Community Relations Council of San Francisco; Jewish
Public Affairs Committee of California (as amended); Iranian
American Jewish Federation; Iranian Jewish Women's Organization;
Magbit Foundation; Namat USA; Nessah Educational & Cultural
Center; Ohel Moshe Congregation; Ohr Haemet Institute; ORT
Organization; Religious Action Center of Reform Judaism; Torat
Hayim; Trojans for Israel; Sacramento Jewish Community Relations
Council; Simon Wiesenthal Center; SC Students Supporting Israel;
StandWithUs; Students Supporting Israel at UCLA; 30 Years After
Opposition : American-Arab Anti-Discrimination Committee;
American Civil Liberties Union; American Friends Service
Committee; American Muslims for Palestine, various chapters;
Arab American Civic Council; Arab American Caucus, California
AB 2844 (Bloom)
Page 18 of ?
Democratic Party; Arab American Cultural Center of Silicon
Valley; Arab Resource and Organizing Center, SF Bay Area; Asian
Pacific American Democratic Caucus; Bay Area Women in Black;
BDS-LA for Justice in Palestine; Bill of Rights Defense
Committee; Center for Constitutional Rights; Chico Palestine
Action Group; Coalition of Palestinian American Organizations;
Cognitive Liberty; Council on American Islamic Relations,
California; Culture and Conflict Forum; Davis Committee for
Palestinian Rights; Defending Dissent Foundation; East Timor
Action Network; Episcopal Peace Fellowship, Palestine Israel
Network; Episcopal Peace Fellowship, Palestine Israel Network,
LA; Free Palestine Movement; Friends Committee on Legislation,
California; Friends of Sabeel North America; If Americans Knew;
International Jewish Anti-Zionist Network (IJAN); International
Solidarity Movement, Northern California; Islah Reparations
Project; Islamic Shura Council of Southern California; Israel
Palestine Task Force of the California Nevada Conference of
United Methodists; Jewish Voice for Peace, various chapters;
Justice for Palestinians, San Jose; Kairos USA; Keep Hope Alive
-- Bay Area Presbyterians; LA Jews for Peace; Middle East Peace
Task Force, Southwest California; Synod, Evangelical Lutheran
Church; National Lawyers Guild, various chapters; North Coast
Coalition for Palestine; Northern California Islamic Council;
Our Developing World; Palestine American Congress; Palestine
American League; Palestine Israel Action Committee;
Palestine-Israel Working Group of Nevada County; Palestine
Legal; Palestine Political Action Committee; Palestinian
American Women's Association; Palestinian Youth Movement-USA;
Peace Action of San Mateo Co.; Peninsula Peace and Justice
Center; People for Palestinian-Israeli Justice; Petaluma
Progressives; Pilgrims of Ibillin; Queers Undermining Israeli
Terrorism; Ramallah Club of San Jose; Rebuilding Alliance;
Resource Center for Non-Violence, Santa Cruz; Sacramento
Regional Coalition for Palestinian Rights; San Jose Peace and
Justice Center; Social Justice Center of Marin; Stop AB 2844
Coalition; Students for Justice in Palestine, various chapters;
Sustainable Agriculture Water and Health (SAWAH); Syria
Solidarity Movement; UAW 2865 Joint Council/Executive Board;
Unitarian Universalists for Justice in the Middle East; United
Church of Christ Palestine Israel Network; United Methodist
Kairos Response; U.S. Campaign to End the Israeli Occupation;
U.S. Palestinian Community Network; Veterans for Peace, Chapter
87, Sacramento; Voices for Justice in Palestine, Rossmoor,
Walnut Creek; Washington Interfaith Alliance for Middle East
Peace; Wellstone Progressive Democrats of Sacramento; Women's
AB 2844 (Bloom)
Page 19 of ?
International League for Peace & Freedom, various chapters; 14
Friends of Palestine, Marin County; over 1300 individuals
HISTORY
Source : Author
Related Pending Legislation :
AB 1552 (Allen, 2016) would generally prohibit a public entity
from entering into a contract to acquire or dispose of goods,
services, information technology, or construction unless the
contract includes a representation that the contractor is not
currently engaged in, and will not during the duration of the
contract engage in, a boycott, as specified. The bill is
currently in the Assembly Rules Committee.
AB 1551 (Allen, 2016) would prohibit the investment of certain
state funds in business firms or financial institutions that
engage in discriminatory business practices in furtherance or in
compliance with the boycott of Israel, as defined. The bill is
currently in the Assembly Rules Committee.
Prior Legislation :
SCR 25 (Block et al., Ch. 127, Stats. 2015) stated the
Legislature's recognition and support for the MOU for strategic
partnerships for joint innovation, exchanges, and cooperation
between California and Israel.
AB 1151 (Feuer & Blumenfield, Ch. 441, Stats. 2011) required
additional public reporting requirements, as specified, by
CalPERS and CalSTRS, regarding retirement investments in
companies with business operations in Iran. The bill also
clarified the fiduciary duties of CalPERS and CalSTRS regarding
investments subject to the CPDIA.
AB 221 (Anderson, Ch. 671, Stats. 2007) enacted the California
Public Divest from Iran Act (CPDIA), which prohibits CalPERS and
CalSTRS from investing public employee retirement funds in a
company with business operations in Iran, as specified.
AB 2251 (Friedman and Margolin, Ch. 1351, Stats. 1992)
prohibited state trust fund and state money investments in
business firms or financial institutions that engage in
AB 2844 (Bloom)
Page 20 of ?
discriminatory business practices, as defined, in furtherance of
or in compliance with the Arab League's economic boycott of
Israel.
Prior Vote :
Assembly Floor (Ayes 64, Noes 0)
Assembly Floor (Ayes 26, Noes 50)
Assembly Appropriations Committee (Ayes 11, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Accountability and Administrative Review Committee
(Ayes 5, Noes 1)
Assembly Rules Committee (Ayes 8, Noes 2)
**************