Amidst concern about foreign influence, the Justice Department has ramped up enforcement of the Foreign Agents Registration Act (FARA). While it is understandable that policymakers want to protect U.S. politics from foreign interference, FARA is overly broad and vague. It has been repeatedly “weaponized” to target nonprofits, activists, and others. To address this problem, ICNL has called for better targeting of FARA’s provisions.
Foreign Agents Registration Act
A Short Introduction
ICNL, “Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency, Duke Law Journal (2020)
ICNL, FARA’s Double Life Abroad (2021)
HR 1 (Sarbanes): To expand Americans’ access to the ballot box, reduce the influence of big money in politics, strengthen ethics rules for public servants, and implement other anti-corruption measures for the purpose of fortifying our democracy, and for other purposes.
HR 337 (Spanberger): To amend the Foreign Agents Registration Act of 1938 to clarify the application to informational materials posted on online platforms by agents of foreign principals of the disclaimer requirements applicable under such Act to informational materials transmitted by agents of foreign principals through the United States mails, and for other purposes.
S 319 (Wicker): To amend the Foreign Agents Registration Act of 1938, as amended, to strengthen the conspicuous statement required on certain informational materials, and for other purposes.
HR 1419 (Omar): To amend the Foreign Agents Registration Act of 1938 to establish a separate unit within the Department of Justice for the investigation and enforcement of such Act, to provide the Attorney General with the authority to impose civil money penalties for violations of such Act, and to require agents of foreign principals who are registered under such Act to disclose transactions involving things of financial value conferred on officeholders.
HR 665 (Posey): To provide that a former Member of Congress or former senior Congressional employee who receives compensation as a lobbyist representing a foreign principal shall not be eligible for retirement benefits or certain other Federal benefits.
HR 417 (Posey): To provide that a former Member of Congress or former senior congressional employee who receives compensation as a lobbyist shall not be eligible for retirement benefits or certain other Federal benefits.
S 577 (Rubio): To amend the Foreign Agents Registration Act of 1938 to limit the exemption from the registration requirements of such Act for persons engaging in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or the fine arts to activities which do not promote the political agenda of a foreign government, to amend the Higher Education Act of 1965 to clarify the disclosures of foreign gifts by institutions, and for other purposes.
HR 1535 (Wilson): To amend the Foreign Agents Registration Act of 1938 to limit the exemption from the registration requirements of such Act for persons engaging in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or the fine arts to activities which do not promote the political agenda of a foreign government, to amend the Higher Education Act of 1965 to clarify the disclosures of foreign gifts by institutions, and for other purposes.
S 687 (Risch): To amend the Foreign Agents Registration Act to allow the President on the Recommendation of the Secretary of State, Secretary of Education, and Attorney General to waive the educational exemption in FARA for an institution of higher education that has received a gift or entered into an agreement with a foreign government. The Act would also allow the President to designate a country a “National Security Concern” and waive the exemptions for foreign principals for up to one year. It would also ban senior State Department officials after retirement from serving as foreign agents of countries designated a national security concern.
HR 3389 (Gallagher): Amending FARA to prohibit certain individuals from service as an agent of a foreign principal.
S 1724 (Grassley): Amending FARA to provide Civil Investigative Demand authority and other powers to the Justice Department to enforce FARA.
S 1754 (Cotton): Amending FARA to repeal the exemption from registration for persons providing private and nonpolitical representation of trade and commercial interests, and the exemption from registration under such Act for persons filing disclosure reports under the Lobbying Disclosure Act of 1995, in connection with the representation of companies based in China.
HR 7264 (Budd): Would amend FARA to require that those who receive funding or anything of value from Russian foreign principals register as a foreign agent under the Act.
Bills or provisions already enacted into law:
HR 133 (Cuellar): Banning registered foreign agents from receiving forgivable loans under the paycheck protection program in COVID relief legislation.
HR 5515 (Thornberry): Creating new disclosure requirements for foreign-based media outlets
Previously Introduced Legislation
Bills or provisions introduced by previous sessions of Congress:
HR 1 (Sarbanes)
HR 867 (Castro)
HR 1467 (Omar)
HR 1566 (Jayapal)
S 480 (Rubio)
HR 1522 (Gallagher)
HR 1612 (Fitzpatrick)
S 949 (Udall)
S 987 (Coons)
HR 5122 (Buck)
S 1762 (Grassley)
HR 5733 (Moulton)
S 3313 (Rubio)
S 4207 (Harris)
HR 8464 (Spanberger)
S 4272 (Risch)
House Bill 4170 (Johnson)
Senate Bill 2482 (Feinstein/Cornyn)
Senate Bill 2039 (Grassley)
Senate Bill 625 (Shaheen/Young)
Senate Bill 1679 (Duckworth)
HR 585 (DeFazio)
HR 2811 (Cicilline)
HR 5354 (Moultan)
Senate Bill 2583 (Rubio)
HR 5336 (Wilson)
HR 6010 (Smith)
Senate Bill 3274 (Bennet)
HR 6533 (Sarbanes)
FARA Investigations & Enforcement
FARA Enforcement by the Justice Department
Justice Department Advisory Opinion finding that the Vice President of Government Relations of a foreign university, that received no funding from the foreign government, needed to register under FARA. As part of their job description, the Vice President would be managing relations with the U.S. Government for the University, including seeking grant funding from the State Department. The Justice Department found the academic or scholastic exemption did not apply because the conduct would constitute “political activities”. January 12, 2022
Justice Department Advisory Opinion finding that a U.S. diaspora group had to register as a foreign agent if it acted at the request of a foreign political party to “distribute materials, merchandise or information” or conduct fundraising activities for the foreign political party. October 24, 2021
Justice Department Advisory Opinion finding that a U.S. nonprofit peace and conflict advisory organization needed to register for receiving a grant from a foreign government to work on a project to build the capacity of civil society and women members of a political faction in a foreign country. While most of the work would be abroad, the funding agreement allotted resources for travel for members of the foreign political faction to the U.S. to foster a “[g]reater public profile” of those members. The Justice Department found this would be “political activities” under FARA. Despite the organization’s claim that the grant was “no strings attached”, the Justice Department found an agency relationship was created under FARA because the funding agreement is predicated on the organization undertaking and fulfilling the objectives filled out in the funding agreement, including through submitting a final narrative report. October 15, 2021
Justice Department Advisory Opinion finding that an independent non-profit global charity that engaged in exchange programs had to register that was originally founded by a foreign government to increase global goodwill towards the country. The Justice Department found that many of the activities the organization engages in could fall under FARA’s exemption for activities “in furtherance of bona fide religious, scholastic, academic or scientific pursuits or of the fine arts.” However, these activities could also be considered “political activities” under the Act because they either attempted to influence U.S. public opinion on changing domestic or foreign policy or to influence U.S. public opinion with reference to relations with a foreign government. As such, they are not exempted. October 8, 2021
Justice Department Advisory Opinion that draws on FARA’s legislative history to find that a “political consultant” would only be required to register if they are engaged in “political activities”, substantially narrowing the definition of “political consultant” under FARA. July 19, 2021
Justice Department Advisory Opinion that finds a group does not need to register under FARA that works with individuals both in the U.S. and overseas to oppose and eventually replace a foreign government because the group does not undertake activities “at the order, request, or under the direction or control” of any foreign principal. July 7, 2021
Justice Department Advisory Opinion that replaces and clarifies an earlier advisory opinion, dated December 31, 2019, that found that a legal department of a US organization had to register under FARA for representing a foreign government. Like the older advisory opinion, the new opinion notes that the legal exemption in section 613(g) of FARA does not cover all of the legal department’s planned activities, including providing “factual responses to media inquiries about the litigation”, issuing “press releases containing facts regarding the litigation”, and engaging in “press conferences” regarding their representation of their client. The new advisory opinion further directs the registrant to a new FAQ entry on the Justice Department’s website that makes clear the legal exemption “may include an attorney’s activities outside [legal] proceedings so long as those activities do not go beyond the bounds of normal legal representation of a client within the scope of that matter.” This opinion has potential implications for nonprofits that represent foreign clients in US courts. Jan. 5, 2021
Marc Tracy and Lara Jakes, U.S. Orders Al Jazeera affiliate, AJ+, to Register as Foreign Agent, New York Times. Sept. 15, 2020
Justice Department Advisory Opinion that found a law firm did not have to register for assisting a foreign pro-democracy council open a U.S. bank account, review vendor contracts, and set up a non-profit, as long as the work remained “corporate and administrative” in nature. July 31, 2020.
Justice Department memo on the “Scope of Agency under FARA”. The agency definition in FARA is one of the vaguest and most controversial provisions of the Act. May 2020
Justice Department Advisory Opinion that found a US environmental nonprofit needed to register even though the nonprofit stated it was not “directed” or “controlled” by a foreign principal. The nonprofit had received a grant from a foreign government to undertake a project that sought to change the product sourcing practices of companies in their use of natural resources outside the United States. The nonprofit met with US government officials and corporations to further these ends. March 13, 2020
Justice Department Advisory Opinion requiring US foundation to register under FARA for preparing banners with the names of foreign foundations that would be carried at an event in the US. The opinion also discusses whether the US foundation needed to register for arranging attendance of foreigners at social events in the US and posting content on its website about the foreigners’ visit, as well as the limitations of the religious exemption. Nov. 19, 2019
Justice Department Advisory Opinion that found that a US policy advisory group did not have to register for work for an international not-for-profit organization headquartered abroad because it fell under the Lobbying Disclosure Act (LDA) exemption of FARA. The work included gathering political intelligence and identifying policymakers. The international organization was not connected with any foreign government. The public relations firm was already registered under the LDA for its work with the international not-for-profit organization. Oct. 17, 2019
Justice Department Advisory Opinion that found a consultant did need to register for working for a foreign foundation. The consultant did not engage in lobbying for the foreign foundation but did engage in outreach for the foundation to institutions and individuals in the United States to engage on issues of economic development, democracy, and good governance. Aug. 6, 2019
Justice Department Advisory Opinion requiring a public relations firm to register under FARA because it engages in advocacy work for US nonprofits that are funded by a foreign government and directed at influencing US corporations’ behavior abroad. July 10, 2019
Justice Department Advisory Opinion that found a consulting firm did not have to register for work for a foreign nonprofit organization to support the candidacy of an individual to a UN position. None of the outreach was to US government officials or the US public. May 9, 2019
Justice Department Advisory Opinion that found a US organization dedicated to furthering the interests of a diaspora community needed to register. The organization engaged in political activities, and although it was not directed or controlled by a foreign government, it received 30-50% of its funding from the government from which the diaspora community emigrated. April 4, 2019
John Bowden, DOJ orders two Chinese state-run media organizations to register as foreign agents, The Hill, Sept. 18, 2018
Justice Department Advisory Opinion that found a US organization did not have to register that was engaged in a dialogue between the US government and a foreign government to seek the release of an incarcerated individual by the foreign government. The advocacy was “humanitarian in nature” and there was no agency relationship with a foreign principal. Feb. 13, 2018
Letter from Justice Department to RT TV America requesting that they register under FARA. Aug. 17, 2017
Letters from Members of Congress to the Justice Department or Executive
Letter from Senator Chuck Grassley and four other U.S. Senators asking the Justice Department why Al Jazeera Media Network, AJ+, and Rightly have not yet registered under FARA. (July 1, 2021)
Letter from Senator Chuck Grassley asking the Justice Department to investigate whether Hunter Biden should have registered as a foreign agent for his connections with CEFC China Energy Co. Ltd. (Nov. 9, 2020)
Letter from Senator Loeffler asking the Justice Department to investigate the use of U.S. nonprofit organizations by the Chinese government to interfere with or influence U.S. elections or policy. The letter does not name any specific U.S. nonprofit suspected of this activity but does call for any entity that has engaged in lobbying or “political activity” that has received Chinese funds to be reviewed for any potential violation of the Foreign Agents Registration Act. (October 8, 2020)
Letter from Representative Gooden to the Environmental Protection Agency (EPA) asking them to investigate whether environmental groups should have to register under FARA because of allegations that they were receiving foreign funding from either Russia or China and engaging in political activities in the US. (Oct. 8, 2020) Letter in response from EPA Administrator Andrew Wheeler stating that they will refer the matter to the Justice Department’s FARA Unit. (Oct. 26, 2020)
Letter from Senator Tom Cotton and Representative Mike Gallagher asking the Justice Department to investigate whether lobbyists for Chinese technology companies have to register under FARA after they were designated as Chinese military firms (September 15, 2020)
Letter from Representative Liz Cheney asking the Justice Department to investigate whether U.S. environmental groups are conduits of “foreign influence” because she claims their “anti-fracking” agendas align with the interests of Russia and China (September 4, 2020)
Letter from Senator Robert Menendez asking the Justice Department to investigate whether former Congressman David Rivera should have registered as a foreign agent for past work in relation to Venezuela (May 18, 2020)
Letter from Senate Minority Leader Charles Schumer asking the Justice Department to investigate whether Acting Director of National Intelligence Richard Grenell should have registered as a foreign agent for past work (Feb. 25, 2020)
Letter from 8 Senators and 27 Representatives calling on the Justice Department to investigate alleged violations of FARA by China Daily (Feb. 6, 2020)
Letter from Representative Banks requesting Justice Department respond whether Xinhua News Agency should register as a foreign agent (Jan. 22, 2020)
Letter from Senators Cotton, Cruz, and Braun requesting Justice Department investigate the National Iranian American Council (Jan. 13, 2020)
Letter from Sen. Rubio to Justice Department to investigate former Secretary of State John Kerry (Sept. 18, 2018)
Letter from 18 House members and 1 Senator requesting Justice Department investigate Al Jazeera (March 6, 2018)
Letter from 7 U.S. Senators requesting Justice Department investigate Chinese media organizations (Jan. 16, 2018)
2018 House Natural Resources Committee Investigation of Environmental Nonprofits
In 2018, as part of an investigation into foreign influence of U.S. environmental nonprofits, the House Natural Resources Committee investigated whether four prominent U.S. environmental organizations needed to register as “foreign agents” under FARA. The investigation ended when Democrats took over the Committee in 2019.
Letter to Earthjustice (Oct. 1, 2018)
Letter to World Resources Institute (Sept. 5, 2018)
Letter to Center for Biological Diversity (June 20, 2018)
Letter to NRDC (June 5, 2018) (and here, July 16, 2018)
ICNL Testimony at U.S. House Committee on the Judiciary’s subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on Enhancing the Foreign Agents Registration Act of 1938, April 2022
Sign-on Letter to the Justice Department on FARA’s Impact on First Amendment Rights, February 2022
ICNL Submission to the Justice Department on FARA’s Impact on Civil Society, February 2022
Alexandra Ellerbeck and Avi Asher-Shapiro, Everything to know about FARA, and why it shouldn’t be used against the press, Columbia Journalism Review, June 11, 2018
Open Letter to Congress Concerning Foreign Agents Registration Act (2018): Signed by 46 humanitarian and development organizations expressing concern over ramping up enforcement of FARA without better targeting the Act. See also, accompanying FAQ to the open letter.
Aid Barriers and the Rise of Philanthropic Protectionism (2015): An article by Doug Rutzen in the International Journal of Not-for-Profit Law on the rise of restrictions on foreign funding in nations around the world.
Fara.gov: The Department of Justice’s website on FARA. It includes the Act itself, regulations, and FAQs among other information.
FARA Targeting in the News
Eliza Newlin Carney, FARA Fiasco: Congress Swings at Manafort, Hits Environmentalists, American Prospect, Sept. 20, 2018
Dino Grandoni, Republicans want to know if environmental groups are really foreign agents, Washington Post, Sept. 6, 2018
Timothy Cama, Republicans target green groups over foreign ties, The Hill, June 27, 2018
Evan Halper, Is that environmental group a pawn of Beijing? Nonprofits wary of being branded ‘foreign agents’, LA Times, June 14, 2018
Andy Segedin, House Seeks Explanation on NRDC, China Connection, Nonprofit Times, June 7, 2018
Nick Robinson and Doug Rutzen, The Unintended “Foreign Agents”, Just Security, March 22, 2018