The Foreign Agents Registration Act Is Broken

This week, former U.S. special counsel Robert Mueller is set to testify before the House Intelligence and Judiciary committees. The hearing could shed new light on his investigation into Russian meddling in the 2016 U.S. presidential election. U.S. President Donald Trump largely shrugged off allegations of collusion with Russia, but the investigators brought criminal counts against six of his advisors and officials.

One of the many consequences of Mueller’s investigation was that it revitalized enforcement of a previously obscure piece of legislation—the Foreign Agents Registration Act, or FARA. The law, long widely ignored or skirted, came into force in 1938 to combat the spread of fascist propaganda into the United States. It requires foreign agents to register with the Justice Department and disclose their activities to the public. Failure to register under FARA figured prominently in the high-profile charges brought against Paul Manafort, Trump’s former campaign chairman and a former lobbyist who notably worked with a pro-Russian political party in Ukraine, and Michael Flynn, Trump’s former national security advisor who acknowledged his own firm’s lobbying work related to Turkish interests. In a spinoff prosecution, FARA was invoked in the case against Greg Craig, who served as White House legal counsel under former President Barack Obama and whose firm had done work on behalf of Ukraine.

These prosecutions have sent influence peddlers throughout Washington scrambling to register their own activities, but it is not just Mueller who has breathed new life into FARA. Over the last two years, the Justice Department has also asked Russian and Chinese media outlets to register under the act, and both Democrats and Republicans in Congress have proposed numerous bills to strengthen its enforcement.

Given concerns about foreign governments quietly buying access to U.S. politicians through lobbyists or Russian-backed disinformation campaigns, giving more teeth to FARA is a logical impulse. Mandating transparency seems sensible when it might bring to light foreign governments trying to undermine the U.S. political system.

There is a fundamental problem with transparency’s new poster child.

Yet there is a fundamental problem with transparency’s new poster child. FARA is so poorly written, and the stigma of being labeled a foreign agent so great, that just increasing enforcement without reforming the underlying law is likely to lead to confusion and abuse.

Thanks to FARA’s notorious breadth and vagueness, the law has a history of being weaponized by the U.S. government and by politicians to target political opponents. Just this past summer, Republican Rep. Rob Bishop, then-chairman of the House Natural Resources Committee, investigated four prominent U.S. environmental nonprofits for supposedly violating the act. The committee chairman claimed, for instance, that the Natural Resources Defense Council, a prominent environmental advocacy organization, should be investigated for acting as a Chinese foreign agent because it regularly met with Chinese government officials as a routine part of its work and, according to the chairman, was more critical of U.S. than Chinese environmental policy. Meanwhile, Trump accused former Secretary of State John Kerry (in a tweet of course) of potentially violating FARA for meeting with an Iranian delegation after leaving office to discuss U.S.-Iranian relations. Republican Sen. Marco Rubio followed up with a letter to the Justice Department asking it to investigate.

These accusations seem specious—because they are. But FARA’s startlingly broad language makes the act susceptible to just such manipulations. The law defines a foreign agent as not just an agent of a foreign government but also as an agent of a foreign individual, corporation, or nonprofit. A litany of activities can trigger the registration requirement, from attempting to influence the U.S. public on a policy issue to soliciting or disbursing money to simply providing information about U.S. policy. And an agency relationship can be created if a foreigner makes a mere request—a term whose definition is hotly contested—to someone to engage in a covered activity. There are exemptions to registering, notably for commercial activity, but they are of little help to nonprofits, media organizations, or public officials.

The act’s sweeping definitions lead to absurd results. Consider, for instance, how it applies to members of Congress themselves. In testimony to Congress in the early 1980s, the noted Harvard University law professor Philip Heymann, who was then the assistant attorney general in charge of the Justice Department’s criminal division, explained that if a member of Congress visited Turkey and a Turkish government official made a request to the member to promote a policy favorable to Turkey, if the member thought the policy was a good idea and then supported it when he or she returned to Congress, he or she would then be an unregistered foreign agent. This crime could lead to penalties of up to five years in prison. As a result, Heymann said in his testimony, the Justice Department essentially ignored that such a request can create an agency relationship. But there is no official rule that concretizes this interpretation, and it seems to go against the text of the act.

The act’s sweeping definitions lead to absurd results.

Indeed, the Justice Department has used FARA aggressively when it pleases. For example, in the early 1950s, as Sen. Joseph McCarthy stoked a red scare by accusing a wide array of people of committing treason, the Justice Department prosecuted W.E.B. Du Bois, a leading civil rights leader of his generation, for failing to register under FARA after he helped distribute an anti-nuclear petition and literature that had originated from abroad. Du Bois was ultimately acquitted of the charges, but the prosecution achieved its objective: He stopped many of his anti-nuclear activities, and he was thereafter sidelined in U.S. politics.

FARA’s broad language also complicates efforts to use the act for legitimate purposes. For years, the Justice Department rarely prosecuted individuals for not complying with FARA. This was likely in part because its prosecutions could easily be labeled as politicized selective enforcement, when so many others were seemingly covered by the act but had failed to register.

Worst still, FARA has become a justification for foreign agent laws in other countries (and not in a good way). For example, Russia and Hungary have explicitly invoked FARA to shield their own similar laws from criticism from the United States and others. They have then used these laws to systematically marginalize civil society groups in their countries by tarring nonprofits and activists as “foreign” and burdening them with bureaucratic red tape.

Established democracies are also increasingly adopting FARA-like laws. Last year, Australia enacted the Foreign Influence Transparency Scheme Act, which was initially modeled on FARA but was ultimately significantly revised after an outcry from Australian civil society about how the draft law would have required them to register for routine work that just happened to involve partners in other countries. Governments in the United Kingdom and Taiwan have also recently announced that they are considering laws to curb foreign influence that are to be modeled on FARA. Details of these plans are still unclear, but hopefully these countries will learn from the U.S. experience and better tailor their own legislation.

Congress needs to step up to fix FARA. Over a dozen bills related to FARA were introduced in the last Congress. And in this Congress, there are already at least 10, with more reportedly on the way. But most of these proposals would just give additional powers to the Justice Department to investigate potential violations and increase enforcement of the act. That’s understandable, but without more comprehensive reform, FARA will continue to breed confusion and distrust.

Before increasing enforcement, Congress needs to first amend FARA to reduce potential for abuse and provide clearer guidance on who should register. For example, Congress could remove the “request” language in FARA and amend the law so it only applies to agents of a foreign government or someone operating on that government’s behalf. Such changes would help focus the act on what most observers are concerned about: genuine agents of foreign governments engaging in core democratic activity in the United States like lobbying. With an appropriately targeted law, it will be much easier, and less risky, to ramp up enforcement and bring to light the actions of foreign governments in U.S. politics that everyone believes should be transparent.