Foreign Agents Registration Act Enforcement
One consequence of the ongoing Russia investigation against the current administration is increased focus and probable enforcement of the Foreign Agents Registration Act (FARA). For Washington insiders, FARA was a known requirement but strict compliance was never the rule. FARA’s purpose was aimed at encouraging disclosure of hidden relationships with foreign governments that are intended to influence US government officials.
With the increased enforcement of FARA disclosure requirements and potential criminal penalties for those who fail to register, lobbyists and other professionals who assist foreign governments have to pay closer attention to FARA’s requirements.
FARA is a disclosure statute that requires persons in the United States who engage in specified activities as agents of foreign principals to register with DOJ’s FARA Unit and to file periodic public disclosures thereafter. The filings must disclose the agent’s relationship with the foreign principal and activities by the agent within the United States on behalf of that foreign principal.
The Act’s purpose is to ensure that the American public and knows the source of information that is provided at the behest of a foreign principal, where that information may be intended to influence U.S. public opinion, policy, and laws.
There are two requirements to be considered a “foreign agent” – first, a person has to work for a foreign principal, that is, a foreign government, political party, corporation or an individual under specific circumstances; and second, a person has to be involved in political activity to influence US policy either as a publicity agent or a lobbyist.
FARA includes the following key requirements and provisions: (1) it defines who must register with the Department as a foreign agent; (2) it specifies how such agents must register and report their activities to the Department; (3) it exempts certain types of foreign agents from the registration requirements; (4) it imposes specific filing and labeling requirements for political literature disseminated by registered agents; (5) it requires all registered agents to preserve books of account and other records on all their activities and to make these records available for inspection by Justice Department officials responsible for enforcing the Act; and (6) it provides for public examination of all agents’ registration statements, reports, and informational materials filed with the Department.
Until recently, DOJ had no articulated strategy for enforcing FARA. Senator Chuck Grassley has criticized DOJ for failing to focus on FARA, prior to the current prosecutions in the Russian investigation. DOJ has and continues to develop this strategy and improve its access to information about potential individuals who fall under FARA’s requirements and may not have registered as required under the law. Congress is considering possible amendments to FARA to strengthen DOJ’s ability to subpoena information to investigate potential violations and eliminate the Lobbying Disclosure Act exemption to FARA.
Violations of FARA carry a maximum punishment of five years imprisonment, while failures to file complete disclosures or supplements carry a misdemeanor penalty maximum of six months imprisonment.
There are a number of exemptions to the FARA requirement, including persons whose activities are commercial; persons who are qualified to practice law and are representing a foreign principal in court or before a US agency; activities in further of religious, scholastic, academic, scientific or fine arts. The scope of these exemptions might become difficult to apply considering the number of social media outlets, non-governmental organizations used as fronts for foreign governments and other challenges relating to defining religious, think tanks and other NGOs that can be used as vehicles for foreign government lobbying efforts.
Professionals involved in activities that may fall within the ambit of FARA have to redouble their compliance efforts to ensure that they do not violate FARA. In today’s environment, DOJ is aggressively pursuing FARA investigations and prosecutions.