A U.S. peace group hosts a public meeting featuring a delegates from a Japanese peace group touring the U.S. to talk about nuclear weapons abolition; a wealthy British philanthropist makes a significant contribution to a small U.S. charity doing research and policy advocacy to support Alzheimer’s patients; a D.C. registered lobbyist, bankrolled by the Russian government, meets with members of Congress to lobby for policies that benefit Russia.
Guess which one wouldn’t be required to register as a foreign agent?
In typical Washington fashion, it’s the lobbyist. She is exempt from the Foreign Agent Registration Act (FARA). But, the activities of the peace group and the Alzheimer’s charity could trigger FARA and require them to register with the DOJ as a foreign agent, submit periodic reports on their activities, and “conspicuously” display on their materials that they are acting on behalf of a foreign principal.
That’s because FARA is so broad and vague, it can be read to cover many activities that domestic advocacy and philanthropic groups do every day, particularly if their mission or vision compels them to engage with civil society outside the U.S. The sweeping ambit of the law seems almost designed to allow for political targeting of disfavored groups.
That’s a problem because Congress is looking at the 80 year-old, rarely enforced law to address concerns about Russian influence in U.S. politics. Several bills have been introduced to strengthen enforcement of the law, without proper attention to the potential negative impact on civil society.
FARA Casts a Wide Net
To understand how civil society could get tangled up by this law but the lobbyist can avoid it, let’s walk through some of the key provisions:
- The law defines “agent of a foreign principal” as someone acting not just under the direction or control of a foreign principal, but acting on the mere request of a foreign principal, or being financed or subsidized in whole or major part by such (and “major part” is not defined).
- Under the law, “foreign principal” includes any foreign person, foundation, non-profit or association, not just governments or political parties.
- Activities covered under FARA include not just electioneering or lobbying, but a host of activities that are civil society’s bread and butter, including education and advocacy or any other activity that seeks to influence public opinion about foreign or domestic policy; it even includes the solicitation or disbursement funds or other things of value.
- Meanwhile, a lobbyist for a foreign government is exempt from FARA as long as they comply with the much less onerous and transparent Lobbying Disclosure Act.
American civil society has always engaged with counterparts outside the country, creating a more vibrant, informed and impactful sector. But many cross-border collaborations could theoretically require philanthropies and other not-for-profits to register as foreign agents, or be held in violation of the law. Imagine any Attorney General, but particularly this one, with the discretion to pick and choose which charities to target under FARA. Who will be the winners, and who will be the losers?
FARA Registration Is No Simple Task
Registering as a foreign agent is onerous, stigmatizing, and not cheap. Not only would a charity be required to register with the AG, but they must file detailed activity reports every 6 months, pay a filing fee (every 6 months), their materials must include a “conspicuous statement that the materials are distributed by the agent on behalf of the foreign principal, and that additional information is on file with the Department of Justice,” and two hard copies of those materials must be submitted to the DOJ within 48 hours of their initial dissemination.
In addition to this administrative and financial burden, being labeled a foreign agent could tarnish the reputation of an organization, harming their credibility with partners, the public, policymakers, and funders. Organizations would have to weigh the potential costs of being required to register as a foreign agent against collaborating with civil society outside the U.S.
Until now, the DOJ has focused on voluntary compliance to enforce the law. If the DOJ believes an entity should be registered under the law (and lacking evidence that the entity is trying to evade the law), “the Department usually sends a letter advising the person of the existence of FARA and the possible obligations thereunder.” Over the past several months, the DOJ has sent letters to the news outlets RT and Sputnik, informing them they are obligated to register under FARA. Although both outlets have complied, many in Congress would like to see DOJ take a more aggressive approach to enforcement.
Proposals in Congress Miss the Mark
Seven bills to amend FARA have been introduced in this session. The Disclosing Foreign Influence Act (HR 4170 /S 2039), introduced in the House by Representative Mike Johnson (R-LA) and in the Senate by Senator Chuck Grassley (R-IA), has the most support. It recently passed out of the House Judiciary Committee on a vote of 15-6, so we’ll take a closer look at that one.
The Johnson/Grassley bill takes a bold step forward for transparency by repealing the exemption that allows lobbyists for foreign governments to register under the far weaker Lobbying Disclosure Act. That’s laudable, but the bill does nothing to narrow the focus of FARA to protect philanthropies or other not-for-profits.
Most problematic is the inclusion of a civil investigative demand authority which would, as the National Association of Criminal Defense Lawyers explained in a letter to the House Judiciary Committee,
“undermine core constitutional principles by granting federal authorities the power to compel the production of documents and force the testimony of the targets of criminal investigations, without any prior showing of probable cause or court approval. This evades fundamental limits on investigatory power and subverts the notion that no person should be compelled to be a witness against himself.”
Given the broad sweep of FARA, it doesn’t challenge the imagination to see how the authority to demand materials and documents and to compel testimony could “be used as a fishing expedition against political opponents,” as Rep. Hank Johnson (D-GA) noted when the bill was being debated in committee.
Johnson/Grassley also requires the Attorney General to develop an improved enforcement strategy, without any consideration to the potential damage to U.S. civil society, particularly under this administration.
Johnson/Grassley could be improved by eliminating the civil demand authority and including provisions to amend FARA to cover only true agent-principal relationships and activities such as lobbying and electioneering rather than the current extensive menu of activities, and re-defining “foreign principal” to mean a foreign government or political party.
Without these changes, the laudable activities of many U.S. civil society groups would face an uncertain future, as they could be forced to decide to end fruitful relationships with international NGOs rather than be made to register as foreign agents.
 Other exemptions to FARA include: Bona fide trade or commerce, religious, scholastic, academic, scientific or fine arts and solicitation or collection of contributions in the US to be used for medical aid, food, or clothing.
Foreign Agent Lobbying Transparency Enforcement Act (S 1679), introduced by Senator Duckworth (D-IL);
Deter Revolving-door Appointments In our Nation; Stop Washington Appointees from becoming Manipulative Petitioners Act or the “DRAIN the SWAMP Act” (HR 584), introduced by Rep. DeFazio (D-OR), and clearly the winner of the best name contest; and
Foreign Agents Registration Amendments Act of 2018 (S 2482), introduced by Senator Feinstein (D-CA).