Beware, Lobbyists: The Future of FARA Under a Biden Presidency

If Donald Trump loses the upcoming election in November, the Department of Justice’s Foreign Agents Registration Act (FARA) – the law that’s already tripped up numerous Trump insiders, and led to jail time for those like former campaign chair Paul Manafort – may look drastically different.

The law, enacted in 1938, was largely unenforced until the mid-2010s, with only a scattering of prosecutions and convictions in its eight-decade-long run. Despite requiring all those lobbying on behalf of foreign governments and “foreign principals” to register with the DOJ, any number of lobbying and PR shops either failed to register, failed to submit timely paperwork, or failed to describe all of their work on behalf of their clients.

In the past four years, though, FARA has seen an unprecedented injection of activity – thanks in large part to the activities of key members of Trump’s 2016 campaign. In addition to Manafort, convicted of working as an unregistered foreign agent on behalf of Ukrainian clients, a number of other high-profile members of Trump’s 2016 march to the White House secretly worked on behalf of foreign clientele. Rick Gates, Trump’s deputy campaign chairman, pleaded guilty for failing to register his work with FARA, as did Trump’s first national security adviser, Mike Flynn.

The reverberations of the new FARA-related focus were immediate. Not only did FARA registrations spike following Trump’s election, but DOJ has placed renewed emphasis on pursuing FARA violations – and dedicated new resources toward enforcement. That’s not to say FARA-related concerns have disappeared; after all, as ProPublica reported last month, Trump’s new acting Director of National Intelligence Ric Grenell appears to have violated FARA regulations while working to whitewash one of the most corrupt actors the post-Soviet space has ever produced. But in a very real sense, FARA enforcement has never been stronger.

If a Democrat like former Vice President Joe Biden becomes president early next year, that trend will almost certainly continue. Moreover, it may accelerate – and a Biden administration may completely change the face of FARA, and foreign lobbying, wholesale.

While he hasn’t discussed foreign lobbying much on the campaign trail, as a candidate Biden has proposed an entire overhaul of America’s lobbying-related regulations. Among other proposals, Biden has called for an outright ban on those lobbying on behalf of foreign governments – effectively making it illegal for Americans and others to lobby on behalf of foreign governments entirely. He’s also called for a concomitant ban on those lobbying on behalf of foreign companies that are linked to foreign governments.

As Biden’s proposal reads:

There is no reason why a foreign government should be permitted to lobby Congress or the Executive Branch, let alone interfere in our elections. If a foreign government wants to share its views with the United States or to influence its decision-making, it should do so through regular diplomatic channels. The Biden Administration will bar lobbying by foreign governments; and it will require that any foreign business seeking to lobby must verify that no foreign government materially owns or controls any part of it.

Such a move would be, to say the least, drastic. It would also, interestingly, largely mirror Democratic Senator Elizabeth Warren’s proposals to curtail foreign lobbying in the U.S. (Warren’s proposal went even further than Biden’s, banning lobbying for any foreign entity, linked to a government or otherwise.) Biden’s proposal would appear to also ban Americans from lobbying on behalf of government-related figures, such as we saw play out with Rudy Giuliani’s relationship with those close to Ukrainian oligarch Dmitry Firtash, as well as other figures in Venezuela and Turkey.

It also builds on Biden’s other lobbying-related proposals. These policies include expanding regulations on those who are required to register as lobbyists, forcing them to disclose their work in greater detail, and requiring elected officials “to disclose monthly any meetings or communications with any lobbyist or special interest trying to influence the passage or defeat of a specific bill.” As POLITICO noted, Biden also “proposed legislation barring lobbyists from fundraising for politicians they lobby or donating to their campaigns.” Biden’s campaign proposals culminate in the creation of the Commission on Federal Ethics, a new independent agency that would “have the authority to enforce its own subpoenas,” as well as “refer matters for criminal investigation to the DOJ.”

It’s unclear, legislatively, how things like the ban on foreign lobbying would come to pass in a bipartisan Congress. There are also concerns, just as we saw with Warren’s proposal, about the ban’s efficacy on constitutional grounds; after all, the right to petition remains protected by the First Amendment.

But Biden’s proposals, much as we saw with Warren’s campaign (and Senator Bernie Sander’s), would present a significant step forward in efforts to combat the kind of subterranean, un-reported lobbying practices that glommed onto Trump’s campaign in 2016, and Trump’s administration overall. It would also hammer the business model of numerous American PR shops and lobbyists, including some who remain supporters of Biden – such as Larry Rasky, who worked as a consultant for Azerbaijan’s despotic government before helping run a pro-Biden Super PAC.

Most importantly, Biden’s proposal, if realized, would present a substantial blow to the means with which crooked officials and kleptocratic governments are able to tilt American policy, both foreign and domestic. And it would help prevent a redux of Trump’s 2016 campaign – and some of the rampant corruption we’ve seen take root under his administration.

Image: Democratic presidential hopeful former Vice President Joe Biden participates in the 11th Democratic Party 2020 presidential debate in a CNN Washington Bureau studio in Washington, DC on March 15, 2020. Photo by MANDEL NGAN/AFP via Getty Images

 

About the Author(s)

Casey Michel

Writer, Analyst, and Investigative Journalist covering foreign interference and kleptocracy-related developments, former Investigative Journalist with ThinkProgress, former Global Magnitsky/Senior Investigative Fellow with the Human Rights Foundation - Follow him on Twitter (@cjcmichel).