Pro-Palestine and free speech activists who have been mobilizing against the Israel Anti-Boycott Act are sounding an alarm about rumors of a secret attempt this week to slip the legislation, which the ACLU has declared unconstitutional even in its revised form, into the must-pass House spending bill.

Despite having 292 House cosponsors and 58 in the Senate, Congressional leaders have not brought the IABA to a vote during the 115th Congress. Now, with just days before Democrats take control of the House, and with numerous cosponsors leaving office due to retirements and midterm losses, time could be running out.

The declining chances for the passage next year of the IABA, a longtime AIPAC priority, may account for machinations like the rumored attempt to slip it into the appropriations bill. A newsletter from Unitarian Universalists for Justice in the Middle East (UUJME) warns:

There is reason to believe that the Israel Anti-Boycott Act (HR 1697) might be “buried” in an appropriations bill this week. The House schedule for this coming week lists an item “Consideration of Legislation Making Further Appropriations for 2019″―no bill number, and no way to track it. Although we cannot be sure, there is a possibility that the anti-boycott bill will be tacked onto a must-pass appropriations bill. We must act fast to make sure that our allies (?) on the House Appropriations Committee (see names in red below, from your nine states) strike the draft of this bill BEFORE it gets to the House Rules Committee. Once it gets there, it will be too late to change it, as there is likely no floor discussion, just an up or down vote.

Lara Friedman of the Foundation for Middle East Peace expressed similar concern on her Twitter feed that the IABA and the Anti-Semitism Awareness Act are about to be pushed through Congress:

Rumors flying that Congress set to pass Israel Anti-Boycott Act – designed to punish/prevent differentiation b/w Israel & settlements by quashing free speech. Likely will also move on Orwellian-named Anti-Semitism Awareness act. The Israel Anti-Boycott Act (IABA – S720/HR 1697) seeks to legislate a free speech exception delegitimizing/criminalizing voluntary boycott of Israel OR settlements…. Its explicit goal is erasing distinction between Israel & settlements. AIPAC et al have been trying to pass these for a very long time. The brazen unconstitutionality has been an obstacle. At least until now.

Friedman has called the IABA an “act of political persecution.” According to Friedman, the IABA “exploits concerns about anti-Semitism as a pretext for policing/delegitimizing/quashing criticism of Israel. It has zero to do with raising awareness about/combating actual anti-Semitism.”

The House spending bill was scheduled to be passed by this Friday, December 7, or else a government shutdown would be triggered. But due to the funeral of former President Bush, a one-week stopgap bill is set to be passed this week and the spending legislation will be decided next week.

The IABA was revised last year in response to First Amendment concerns, dropping prison as a penalty and specifying that speech critical of Israel cannot be used as evidence that the law was broken. But the ACLU and the Center for Constitutional Rights consider the bill “still unconstitutional.” According to the ACLU, the revised IABA imposes criminal financial penalties on “Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories, if those boycotts were called for by international governmental organizations like the United Nations.” (This could include a UN call for a boycott of 206 companies it has listed with business ties to Israeli settlements. The publication of that list has been delayed after “strong pressure” from the US and Israel.)

In their newsletter, the UUJME recommend urgent action to contact House Appropriations Committee members:

Our argument to our representatives is that this provision―HR 1697, or the Israel Anti-Boycott Act―is too contentious and has too much baggage (including ACLU opinion that it raises free speech issues), to be attached to an appropriations bill that needs to pass.

UPDATE: Josh Ruebner of the US Campaign for Palestinian Rights clarifies that their action alert is aimed at contacting Nancy Pelosi and key Senators (chiefly Democrats and some Republicans who have not cosponsored the IABA), rather than House Appropriations Committee members as UUJME recommended, based on their understanding that the spending bill’s details are being hammered out between top House and Senate leadership (Paul Ryan, Nancy Pelosi, Mitch McConnell and Chuck Schumer). According to Ruebner, the must-pass spending bill is subject to intense lobbying by members to attach pet legislation that couldn’t pass normally, and (as The Intercept reported earlier) Sen. Ben Cardin has been pushing hard to include the IABA. Under this process, Ruebner says, House Appropriations Committee members will not have input on the individual items.

According to analysis from a UUJME friend with 27 years experience as a lawyer working in the House, it is vital to watch the House Rules Committee for signs the IABA has been attached to the spending bill:

“…as I read this, it means that the Speaker is giving notice that they may bring up a bill this week making further spending decisions for FY19. There’s no bill number, which means that this will be a “leadership” bill―something that is cobbled together by the House leadership with very little prior notice to the “rank and file” of its contents. In other words, they are keeping it under wraps and then will try to ram it through. I guess, but I don’t know, that there will be little consultation with Democrats. “But it is very typical of these kind of “midnight” bills to contain all sorts of provisions intended to garner votes, and it could well be a vehicle for the kind of provision you’re concerned about. “The place to keep your eye on is the House Rules Committee, which must meet and approve a “rule” that governs the House’s consideration of this bill (as it does with all bills except those under suspension). A rule for a bill like this is likely to allow no floor amendments―so it will likely be an up or down vote on the entire bill, with no opportunity to delete or add provisions on the floor. As there is little time left in the session, there will be strong pressure on Republicans to vote for it. “Usually, the Rules Committee will have a text of the bill at its meeting—it may be your first chance to see what’s in it. (And everyone else’s first chance, too.)

If the IABA doesn’t pass before the 116th Congress takes office on Jan. 3, the legislative process must begin all over. Many of the act’s 292 House cosponsors were Republicans who retired or lost their seats in the “Blue Wave,” including chief House sponsor Pete Roskam (R-Ill.) All five incumbent Senators who were defeated in November―Democrats Joe Donnelly, Heidi Heitkamp, Claire McCaskill and Bill Nelson, and Republican Dean Heller―were cosponsors of the IABA. In the new session, even Democratic members who previously signed on would be under pressure not to renew.

Though the act currently has 76 Democratic House members on board, Nancy Pelosi is much less likely than Republicans to bring this legislation to the floor. She is already under pressure on multiple issues from newly-elected progressives who have criticized Israel like Alexandria Ocasio-Cortez, Ilhan Omar and Rashida Tlaib (who supports BDS and just announced she is skipping AIPAC’s Israel trip for a tour of the occupied territories).

Momentum for the act seemed stalled until Senator Cory Booker gratuitously announced his support, taking opportunistic advantage of the horrific Tree of Life synagogue massacre in Pittsburgh in late October to restore his standing with pro-Israel donors perturbed after he accidentally posed at the progressive Netroots Nation conference with a sign reading “From Palestine to Mexico, all the walls have got to go.”

Booker formally cosponsored the act on November 29, the UN’s International Day of Solidarity with the Palestinian People and also marked as Nakba Day. Booker was the first Senator to add his name since Cindy Hyde-Smith, the Mississippi racist who last week won a runoff election for her Senate seat after joking about public hangings and voter suppression.

It is unclear whether Booker’s show of support for Israel will benefit or harm his likely 2020 presidential campaign. Polls show accelerating erosion in Democratic voters’ support for Israel, and Booker’s fellow 2020 hopeful Kirsten Gillibrand was successfully pressured by constituents to remove her name from the IABA after a feisty town meeting in 2017.

UPDATE: The Intercept is now reporting that Sen. Ben Cardin, chief Democratic Senate sponsor of the Israel Anti-Boycott Act, is behind efforts to include it in the end-of-year spending bill. The US Campaign for Palestinian Rights has issued an action alert urging Americans to contact Nancy Pelosi at (202) 225-4965 to tell her not to include the Israel Anti-Boycott Act in the budget. The US Campaign provides this sample script, but suggests using your own words: