In Absence of Foreign Agents Registration Reform, DOJ Tweaks Could Make a Big Difference

The Foreign Agents Registration Act (FARA) stands at the vanguard of U.S. attempts to expose foreign lobbying and influence campaigns. By shining the “spotlight of pitiless publicity,” as a 1937 House of Representatives report put it, on foreign influence, FARA aims to impart transparency over the use of foreign agents and their activities.

The framework has assumed elevated importance in recent years with revelations of foreign interference in U.S. democratic processes. Despite this, its core obligations have not been comprehensively updated since the 1960s, even though more than 40 proposals have been introduced in Congress since 2016. Pending broader legislative improvements, the Department of Justice (DOJ) should explore and consider evidence-led tweaks at the executive level to address key shortcomings in the framework.

From Nazi Propaganda to Foreign Lobbying

While FARA was originally enacted in 1938 in response to Nazi propaganda, it has undergone substantial – albeit piecemeal – revision over the years. The last major reform to FARA’s core obligations (in 1966) reoriented the law to focus on foreign lobbying and political activities. After those amendments, FARA entered a period of relative obscurity, with only seven prosecutions launched under the law between 1966 and 2015. The outlook is substantially different today.

In its current form, FARA operationalizes transparency through two core mechanisms: 1) requiring agents acting on behalf of foreign principals to register and make periodic, publicly available filings detailing their activities, and 2) requiring that materials disseminated by such agents be filed and that it contain conspicuous labelling that it is being circulated on behalf of a foreign principal.

Concerns over foreign interference in the 2016 election and other U.S. democratic processes have placed FARA conspicuously in the spotlight. This renewed interest has exposed several shortcomings; critics say it is vague, outdated, and provides insufficient enforcement powers. In a 2016 audit, the DOJ’s Inspector General pointed to glaring gaps in the enforcement machinery under FARA. While these concerns remain unaddressed, FARA enforcement has seen a resurgence, with at least eight criminal cases filed since 2017 – including several high-profile prosecutions — and more to come.

These factors have also stimulated congressional interest, as evidenced by the 40-plus bills (many identical) introduced to amend FARA since 2016. However, legislative inertia and the toxicity of the foreign-influence issue – the subject of politically-charged investigations and discourse – have resulted in no amendments becoming law since minor procedural changes were enacted in 2007.

The new congressional agenda also reflects an urgency to amend FARA. As of early March, at least three proposals have been introduced in the 117th Congress to amend provisions of the Act. Despite early progress (in the form of H.R. 1), it is unclear if they will suffer a fate different from their predecessor bills. But this does not mean that FARA must continue to stagnate. The legislative path may not be the only one to a more effective framework.

The fact remains that there will be no better time for reforms to foreign-influence regulation than the uneasy peacetime following a divisive election. FARA, in its current form, delegates several extremely broad, and little-discussed, discretionary powers on the attorney general (in practice, DOJ). In addition, implementing regulations under FARA were last comprehensively issued in 1967 and have only been slightly modified since then (last in 2007).

By reviewing and clarifying these regulations, and creatively deploying its delegated authorities to tweak FARA filings, DOJ can – at the executive level – improve transparency on foreign-influence pending, even as a complement to legislative reform, if that materializes. These tweaks also may provide valuable evidence and data points to shape the legislative agenda.

Following are three ideas for tweaks along these lines.

  1. Require More Detailed Filings

A proactive DOJ may be able to use delegated authorities under FARA to require additional types of disclosures from registered foreign agents. FARA provisions authorize the attorney general to require the filing of “such other statements, information, or documents pertinent to the purposes of this subchapter as the Attorney General, having due regard for the national security and the public interest, may from time to time require.” (22 U.S.C. § 612(a)(10)) (emphasis supplied).

As “this subchapter” refers to the entirety of FARA (i.e. 22 U.S.C. §§ 611 – 621), the breadth of this power would seem to authorize DOJ to address gaps in the broader framework by requiring additional disclosures from agents over and above filings that are already mandated.

For instance, enhanced disclosures may be mandated relating to specific activities or occasions such as elections. Registered agents could be required to make additional disclosures on their election-related information dissemination or political activities. After all, there can be little dispute that free and fair elections are very much in the interests of national security and the public – the only criteria that must be fulfilled to exercise these statutory powers.

On its face, this power could also be used to tweak filing requirements to account for known inadequacies in FARA such as those relating to the information dissemination activities of agents. It could, for instance, be used to require disclosures around the channels/modes of disseminations by agents or to require more granular records relating to disseminations circulated to fewer than two persons. This might ensure more meaningful transparency, since the statutory requirement that only informational materials circulated to at least two persons be filed does not reflect modern realities of how easily information can be created and circulated. In addition, this power could potentially be used to require more robust disclosures from agents of certain states of “national security concern,” which might include states whose agents have most frequently been found in violation of FARA or others as informed by recommendations from counterintelligence components.

  1. Ensure Accuracy and Accountability

Similar powers authorize the AG to require the filing of “such further statements and such further copies of documents as are necessary to make the statements made in the registration statement and supplements thereto, and the copies of documents furnished therewith, not misleading.” (22 U.S.C. § 612(a)(11)).

While narrower than 22 U.S.C. § 612(a)(10), this provision is the clearest enunciation of the DOJ’s powers to pursue corrective action against filings which are either incomplete or do not meet the requisite standard of detail. A key shortcoming with FARA concerns scenarios where agents have provided only generalized disclosures regarding their activities. For instance, it is common for some agents to only describe their activities on behalf of foreign principals using vague terms such as “lobbying” or “public relations” without any indication of what these activities actually entail or which issues they pertain to.

As enforcement so far has mainly concerned non-filing (as opposed to insufficiently detailed filings), more robust utilization of this provision could help signal that FARA filings are not a mere formality.

Combined with clearer guidance in the regulations on the level of detail required, this authority could be deployed to require agents to provide more detailed additional statements, explanations, and documents – over and above the minimum required – in scenarios where initial filings are inadequate (to the level of being misleading). In particular, this power may also be used to retrospectively examine and remedy filings concerning sensitive occasions such as elections.

Rather than merely requiring inadequate filings to be corrected, setting an example by interpreting, and using these powers in a broad and well-publicized manner (e.g., by requiring explanations for non-compliance or a section of the FARA portal dedicated to defaulters or corrected filings) may actually deter agents from filing insufficiently detailed statements in the first place. After all, merely making a new filing in the vast database without any additional publicity would help frequent defaulters avoid the spotlight and be unlikely to hold true to the core objectives of FARA.

  1. Accelerate Filing Requirements

It is also well within the powers of DOJ to require more frequent filings by agents if the AG, “having due regard for the national security and the public interest,” determines that it is necessary to carry out the purposes of FARA. This power may be exercised “in any particular case, [to] require supplements to the registration statement to be filed at more frequent intervals in respect to all or particular items of information to be furnished.” (22 U.S.C. § 612(b)).

At present, supplementary statements reporting agent activities are required to be filed at six-month intervals. However, if the DOJ wanted to require agents to make more frequent disclosures around the time of particularly sensitive occasions (such as elections), it is empowered to do so under FARA. While deadlines for filings under FARA exist, these are frequently ignored – without adverse consequence. This leads to a scenario where filings may not be made for months or years. In addition, as filings timelines are not standardized, it may also be legal for agents to make supplemental filings as much as six months after a sensitive occasion such as an election. Such practices are antithetical to FARA. Legislation proposed in 2016 also attempted to address this issue by mandating a standardized cycle of quarterly filings.

These powers could be used, for instance, to require more real-time disclosures of election-related lobbying or expenditures in the runup to and aftermath of an election. If such a model is implemented, FARA would more closely parallel modern agent-registration frameworks like the Australian Foreign Influence Transparency Scheme (FITS). Like FARA, FITS requires foreign agents to register and publicly disclose their representations. Uniquely though, FITS contemplates enhanced filing requirements during “voting periods.” New agents are required to register, and existing agents are required to review, update, and supplement their disclosures, within 14 days of commencement of a voting period.

Moving Forward

While these powers exist on the books, there is nothing in the public domain to suggest they have been exercised by DOJ in the manner suggested – either in general or around elections or other sensitive occasions. Removing the element of discretion during vulnerable periods might also suggest a concrete legislative path for FARA reform. In fact, testing the limits of these powers may also produce valuable data points and evidence to guide more comprehensive legislative reforms to an aging framework that is more the culmination of piecemeal reform rather than systematic study. This could also be valuable globally. After all, in addition to its domestic role, FARA has featured prominently in global discourse about counter-influence legislation – both as a benchmark for states looking to evolve responses to malign influence and as a justification for stricter regulations related to the activities of organizations such as NGOs.

Over and above these tweaks, the level of compliance with FARA will also come down to signaling. Public statements and affirmations of strict enforcement (e.g. on election-related influence activities) may help place registrants on notice about the consequences of non-compliance – intentional or otherwise.

In the past, foreign agents have treated FARA filing deadlines with relative impunity. The DOJ Inspector General’s audit of FARA noted, “Under FARA’s current statutory and regulatory authorities, there is no penalty for lateness.” While this is a glaring loophole that should ultimately be closed through legislation, DOJ can indicate to FARA registrants in the meantime that it will prioritize oversight of – and potentially name and shame – registrants found to have consistently violated filing deadlines. Publishing detailed enforcement statistics may also help improve public trust.

Of course, such executive-branch improvements will not, on their own, address broader questions about the efficacy of transparency on foreign influence or the need for new and more innovative mechanisms to accomplish that goal. With changes to how societies receive and process information, more searching questions may need to be asked about FARA and whether – and how best – to reorient the framework to the digital age. All of this will require legislation. After all. when FARA was originally enacted – as the McCormack Act in 1937 – it was considered an “experiment” by its sponsor. Almost 85 years later, it cannot still be treated as one.

IMAGE: A folio belonging to Adam Hickey, deputy assistant attorney general in the National Security Division; is seen before a Senate Judiciary Committee hearing on “Oversight of the Justice Department’s (Non) Enforcement of the Foreign Agents Registration Act: Lessons from the Obama Administration’ and Current Compliance Practices” on Capitol Hill in Washington,DC on July 26, 2017. (Photo YURI GRIPAS/AFP via Getty Images)

 

About the Author(s)

Tarun Krishnakumar

Tarun Krishnakumar is a consultant researcher with the Foreign Influence Transparency Initiative (FITI) (@InfluenceWatch), housed at the Center for International Policy in Washington D.C.