Congress Seeks to Tighten Rules on Foreign Lobbying

A bipartisan group of lawmakers is trying to close a legal loophole and plug efforts at foreign interference in U.S. politics. It’s a wayback machine—but for “foreign agents.”

The Retroactive Foreign Agents Registration Act (RFARA) is part of a ramp up in efforts to enforce the Foreign Agents Registration Act (FARA) since the Robert Mueller probe into Russian interference in the 2016 presidential election that ensnared some of Donald Trump’s top aides. Paranoia in Washington has lawmakers looking to weed out any signs of foreign influence as tensions with Beijing escalate and a mistrust of its Gulf partners grows.

The push for FARA reform stems from a controversial D.C. ruling in 2022 that dismissed the Department of Justice suit against casino magnate and former Republican National Committee finance chair Stephen Wynn. The Department of Justice demanded Wynn register as a foreign agent for helping China lobby the Trump administration in 2017 to cancel the visa of Chinese businessman Guo Wengui, who sought political asylum in the United States. 

The D.C. Court ruled that the obligation to register under FARA—obligatory for anyone actively working for a foreign government or entity—ends when the relationship does, even if it wasn’t disclosed before. So it dismissed the case, in the judge’s words, “without ever considering whether Wynn was a [Chinese] agent or not.”

The decision sparked backlash from lawmakers from both sides of the aisle, who claimed that FARA could not be enforced if an unregistered agent can “simply announce that he is ending the agent relationship, never register, and face no penalty, according to a July 11 press release. The bipartisan grouping said it hopes to prevent unregistered agents from exploiting judicial misreadings of FARA.

“At a time when the PRC and other adversaries are using foreign agents to mount influence campaigns and wantonly perpetrate transnational repression in our country, as an absolute baseline, we need to enforce FARA’s intended transparency standards in order to counter the [Chinese Communist Party’s] malign designs,” said Republican Rep. Mike Gallagher, the chair of a special House committee on Chinese influence. 

The draft bill is noteworthy for its rare meld of bipartisanship. It’s not, however, likely to be that consequential, even if it passes. There have been less than a dozen civil cases in the past 30 years under FARA, and this bill only pertains to civil cases—not criminal violations of the requirement. In most instances, FARA issues are resolved before a criminal or civil case has to be brought to court, said Matthew T. Sanderson of Caplin and Drysdale law firm.

“The only reason the Department [of Justice] would bring a case of civil suit is if the party is unwilling to register,” he said, which is a rare occurrence. 

Other legal experts said the proposed fix targets a very specific situation, rather than any broader weakness in the foreign-agent registration system. 

“The Wynn case deals with a very narrow situation and the proposed bill [attempts] to resolve that one very narrow situation,” said Robert Kelner, an elections and politics practitioner at Covington & Burling.

The Senate passed two other FARA-related bills in June, which legal experts believe will have more of an impact than RFARA. One of those, the Lobbying Disclosure Improvement Act, would require lobbyists to indicate whether they are exempt from registration under FARA. A foreign agent who is registered under the Lobbying Disclosure Act is exempt from FARA if the agent is not lobbying on behalf of a foreign government or political party, according to the Department of Justice.

At the end of the day, the likeliest outcome is that Congress could pass the bipartisan, but not-too-meaningful FARA reform bill, or shoot for more comprehensive reform which would be a tougher sell across both aisles.

“One possibility is that [RFARA] will pass and members of Congress will say okay we’ve reformed FARA when in fact they would have accomplished virtually nothing,” Kelner said. “But I suppose another possibility is that as this bill moves through the congressional process, maybe some elements of the other bills will be added, but I think if that happens, it’ll probably be far less likely to pass [due to less bipartisan support].” 

The underlying problem with keeping track of foreign lobbyists isn’t when they did their paperwork: It’s who should be in the dragnet in the first place. Despite the push from lawmakers to reform FARA, legal experts point out that the reform is primarily concerned about increasing disclosure of foreign activity rather than clarifying the vague wording of the text that has raised questions about who and what exactly can be deemed a foreign agent. 

FARA requires “an agent of a foreign principal” to register with the Justice Department—any person whose activities are directly or indirectly supervised, financed, or subsidized by a foreign principal. A foreign principal can be any government, political party, organization, individual, corporation, or entity outside the United States, according to the legislation. That’s a whole lot of entities.

“Most members of Congress who have paid any attention to FARA are focused on how to make it tougher when the real problem is that it’s too broad and vague,” Kelner said. “There’s very little interest in Congress in clarifying FARA and making it narrower and clearer and more targeted.”