The Foreign Agents Registration Act (FARA) needs to be fixed. After the 2016 presidential election, there was a marked increase in concern about Russian and Chinese influence in U.S. politics, and many turned to FARA as a potential answer. The Act has provided needed transparency around lobbying by foreign governments and led to recent high profile prosecutions, including of Michael Flynn and Paul Manafort. However, FARA’s notoriously sweeping provisions have increasingly interfered with the operations of nonprofits, businesses, media, religious institutions, universities, and others with limited or no connection to foreign governments in a manner that Congress never intended and that raises clear First Amendment concerns.
In response to the Justice Department’s recent announcement that it was considering major changes to FARA’s implementing regulations, the Department last month received a slew of critical public comments, including from the International Center for Not-for-Profit Law (ICNL), where I manage the U.S. Program. One media outlet called the widespread criticism a “five-alarm fire” for DOJ. An open letter signed by the ACLU, Americans for Prosperity, the NRDC, and other prominent nonprofits warned that “FARA’s overbreadth and vagueness can undermine and chill First Amendment rights to speech and association and the statute has a history of being used to target undesirable expressive conduct.” The Global Business Alliance, whose members include corporate powerhouses like Anheuser-Busch, Toyota, and Unilever, cautioned that FARA risked undermining U.S. democratic self-government by imposing excessive burdens on advocacy by those who have foreign connections, but are not acting on behalf of a foreign government.
The public comments provided an unsettling litany of examples of conduct that would seemingly require registration under DOJ’s current interpretation of the Act. For example, the Institute for Free Speech lamented that the countless Americans who respond to urgent pleas from those in war torn countries, like Afghanistan or Ukraine, to help them flee by contacting their members of Congress would arguably need to register. Or alternatively, the National Association of Criminal Defense Lawyers worried that a U.S. Catholic bishop who delivered a message to his congregation on behalf of the Pope that the death penalty is morally wrong would need to register for advocating for a change to U.S. law.
For those unfamiliar with FARA, these examples at first can seem absurd. Yet, while DOJ has historically narrowly interpreted its prosecutorial priorities for FARA, the Act is, in fact, dizzyingly broad. Traditionally, many concerned about foreign influence have viewed this wide scope as an advantage, allowing the government a relatively free hand to choose who to require to register. However, a combination of the politicization of FARA, DOJ’s own advisory opinion system, and disagreement about what should be the Department’s enforcement priorities has cast a spotlight on how unsustainable this arrangement actually is, increasing the odds either Congress or the courts will need to intervene.
FARA’s Identity Crisis
It is worth taking a step back to understand how we got to this inflection point. FARA was enacted in 1938 to combat Nazi and communist propaganda. While ostensibly a transparency statute, in actuality the Act was used to stigmatize and mire in red tape German propaganda outlets, essentially shutting them down. After World War II, during the McCarthy era, DOJ used the statute to prosecute W.E.B. DuBois, the renowned civil rights activist, for disseminating anti-war literature from a French nonprofit. DOJ’s prosecution was motivated by DuBois’ perceived communist sympathies and, although ultimately the charges were dismissed, his reputation never recovered in his lifetime. Following the DuBois fiasco, FARA prosecutions declined dramatically and by the 1980s FARA was primarily used against lobbyists of foreign governments and political parties, and even for this more limited goal, it was widely seen as being underenforced.
With a rise in concern about foreign influence, the Act has been going through an identity crisis, with disagreement about whether enforcement should focus solely on foreign government lobbying, or also foreign media networks, Confucius Institutes at universities, foreign funded think tanks, or foreign election influence. The problem is that the Act is both a poor fit for some of these concerns and strikingly sweeping, capturing much other conduct that most people would not think should be registrable.
Under FARA, an “agent of a foreign principal” must register with DOJ if engaged in a covered activity. A “foreign principal” includes not just foreign governments or political parties, but also foreign companies, nonprofits, or individuals, or even Americans domiciled abroad. Covered activities include a wide range of conduct, such as distributing anything of value, attempting to influence any section of the U.S. public on a domestic or foreign policy issue, or even engaging in disseminating “information” with respect to “facts” about a foreign country, company, or organization. One does not have to act at the direction and control of a foreign principal to become a “foreign agent”, but merely act at their “request” or be funded by them in “major part” (neither term is defined in the Act). Registering is both burdensome and stigmatizing, involving extensive public reporting requirements and necessitating one to label covered material as being distributed on behalf of a foreign principal. Willful violation of the Act is punishable by up to five years in jail.
When there was broad understanding that DOJ would focus FARA enforcement on foreign government lobbyists, few of the broad array of Americans potentially affected by the Act gave it much attention. However, as the Department has applied FARA in new areas this has created both uncertainty and spreading consternation.
Some of DOJ’s shift in enforcement has been intentional and perhaps even predictable, albeit controversial. For example, in 2017 and 2018 the Department ordered Russian and Chinese media outlets to register. It is not obvious this enforcement action helped combat disinformation in any manner, and RT, the Russian backed TV channel, recently shut down U.S. operations, not because it had to register, but from fallout from the Ukraine invasion. However, as the Committee to Protect Journalists has pointed out, requiring these registrations created “the appearance that the act is a foreign policy tool,” as none of the similarly situated state-funded news organizations of major U.S. allies, such as the BBC or CBC, were required to register. In the process, the FARA registration requirement sparked backlash against U.S. media abroad, including in Russia, which passed reprisal legislation in 2017 that the government then used to declare foreign funded media “foreign agents” undermining their credibility, viewership, and access to advertisers.
Yet the current FARA mess in the United States was caused by far more than such well publicized pivots in enforcement. Under current policy, the public can ask DOJ if they are engaged in registrable conduct and receive an advisory opinion in response, which is then publicly posted in redacted form. With the spotlight on FARA, there has been a marked increase in such requests, and in these opinions DOJ has interpreted the Act broadly. For example, in one telling opinion, the Department required a U.S. church register as a foreign agent because its U.S. congregants had printed out banners at the “request” of foreign congregants who were traveling to Washington D.C. for the March for Life rally. With each advisory opinion, the Act, and its startling breadth, have become more widely known, triggering yet more requests for opinions, creating a spiral in which more and more Americans become ensnared in FARA’s web.
Registering can have significant consequences. For example, in a 2020 advisory opinion, DOJ demanded the National Wildlife Federation (NWF) register because it received a grant from the Norwegian government to work on deforestation in Brazil and other tropical countries. While most of the project was outside the United States, it did involve a contractor working with U.S. multi-national corporations on creating environmentally sustainable supply chains. As NWF has complained to DOJ, registering has since impeded their ability to receive needed foreign government grants for their global environmental work.
Complicating enforcement further, FARA has become increasingly politicized. In 2018, the then-Republican controlled House Natural Resources Committee investigated four prominent U.S. environmental nonprofits, including the World Resources Institute and EarthJustice, for failing to register under FARA, focusing on how they may have acted at the “request” of foreigners. If Republicans take control of either chamber of Congress in 2022, many expect investigations to restart against environmental nonprofits, potentially leading to reprisal investigations from Democrats against the National Rifle Association or others they may wish to target.
Importantly, FARA’s resurgence has not just been a problem for U.S. civil society. Authoritarian-minded governments in countries like Russia and Hungary have used FARA’s broad provisions to justify and defend their own “foreign agent” laws that they have used to tarnish human rights groups and independent media, ultimately leading to many of them shutting down. Last year, El Salvador’s right-wing President went so far as to tweet the Justice Department’s own FARA page to rebut critics who claimed his proposed “foreign agent” law was anti-democratic.
In a global battle for democracy, the United States needs to provide a model of how to address foreign influence in a targeted manner. Instead, FARA’s sweeping provisions are providing cover to autocrats to crack down on dissent.
Steps Towards Reform
FARA needs to be fixed and, as recent pieces in Just Security (here and here) have highlighted, there is a renewed focus in 2022 on reforming the Act and its enforcement. In any new FARA regulations, DOJ should limit future enforcement to be in line with its past prosecutorial priorities. For example, it should require that an agent actually act at the direction and control of a foreign principal. Further, it should read an exemption in the Act that requires an agent must act predominantly for a “foreign interest” to mean that the agent must be acting on behalf of a foreign government or political party. In other words, no one should be required to register because they acted at the “request” of Amnesty International London to write a letter to their Congressperson to try to free a dissident in Myanmar.
That said, it is unlikely DOJ will voluntarily place significant limits on its own enforcement powers and, at any rate, any new regulations could be changed by a future (perhaps much more politicized) Department. As such, there is a growing chorus of voices calling on Congress to reform the Act, including a recent ABA taskforce report on FARA.
While the Act has provided needed transparency around foreign government lobbying, its other benefits have been far from clear. Congress should learn from this experience and tighten the Act so that it is aimed squarely at lobbyists for foreign governments and political parties. If Congress wants to address other foreign influence problems, it should target those separately. For example, another part of the criminal code, that has been used to prosecute alleged spies, already makes it illegal to act as an undeclared “agent” of a foreign government.
Without a quick course correction, FARA faces the very real prospect of being challenged for violating the First Amendment’s protections for speech and association. While it is unlikely a court would rule the entire Act unconstitutional, the specter of ongoing litigation, which could strike down key parts of the Act, would both create confusion for those trying to comply and hamper the Justice Department’s enforcement priorities. A much better path is for Congress to address this brewing crisis now by reforming FARA.