Advocacy, Europe, Lobbying law, Top Stories

Justice Department asks grant-funded NGOs to register as foreign agents

The Department of Justice is sending shock waves across the advocacy community by treating certain grant-funded non-governmental organizations as agents of foreign governments.

The National Wildlife Federation (NWF) registered as a foreign agent of Norway earlier this month after being told that it was “obligated” to that country’s government because it had received money from the Norwegian Agency for Development Cooperation (NORAD). The Washington-based nonprofit is the recipient of a five-year, almost $6 million grant from the agency to combat deforestation in Indonesia and South America.

The new requirement has clearly rankled a widely respected nonprofit that prides itself on its independence. In its June 15 registration under the Foreign Agents Registration Act (FARA), the National Wildlife Federation made it clear that it is disagrees with the Justice Department’s rationale.

“While it receives funding from NORAD, [NWF] values its independence and would not accept funding from any source that comes with limitations on the ability of NWF to advocate for the values and policies it believes in,” the nonprofit wrote. “Likewise, the grant agreement does not give NORAD any ability to direct or control NWF.”

The filing goes on to say that NWF “does not consider these stated activities to be ‘political activities’ and does not believe that it is required to register under FARA but is doing so at the direction of the FARA Unit.”

The nonprofit expanded on its objections in emailed comments to Foreign Lobby Report.

“The National Wildlife Federation is actively engaged in work in South America and across the globe to fight tropical deforestation by working with private companies and policymakers in their respective countries. This deforestation work — which is critically necessary to protect wildlife habitat, address the global biodiversity crisis, and act on climate change — does not involve direct lobbying for changing U.S. laws,” said Mike Saccone, the group’s associate vice president for communications. “The National Wildlife Federation disagrees with the federal government’s change in its interpretation of FARA. In fact, this change could undermine the critical work that the National Wildlife Federation and other conservation organizations engage in to fight deforestation.”

Indeed, the new guidance has ramifications far beyond the National Wildlife Federation. Advocates for non-governmental organizations have long argued that requiring such a registration undermines NGOs’ claims to independence while also empowering foreign governments to enact their own restrictions.

“Registering NGOS as agents of any government would erode the independence of nonprofits,” Brian Wanko, the manager of the Democracy, Rights, and Governance Initiative at InterAction, an alliance of international NGOs in the United States, wrote in a March 2019 article. “Many nonprofits operate as neutral actors in crises areas, including in war-torn and repressive environments. For safety and security reasons, nonprofits must maintain this neutrality and independence.”

Furthermore, Wanko wrote, “FARA is further used overseas for repressive regimes as an excuse to crackdown on civil society, as governments use the Act as cover to enact their own restrictive laws.”

“Registering NGOS as agents of any government would erode the independence of nonprofits.”

Brian Wanko, InterAction

The Department of Justice declined to comment.

The NWF’s registration appears to stem from a March 13 advisory opinion that the FARA unit recently posted on its web site. While identifying information is redacted, the timing and content of the opinion are a match for the NWF’s case.

In the opinion, the Department of Justice writes that the group seeking the opinion had argued that the grant-maker did not have “any ability to direct or control” the recipient of the funds. “We disagree,” DoJ wrote. The recipient is “acting as an agent of this foreign principal because [the grant means] it is obligated to engage in activities to advance the deforestation priorities” of the grantmaker.

March 13, 2020 advisory opinion from the Department of Justice

Other nonprofits could soon find themselves in similar straits.

Last summer, a subcontractor working for the National Wildlife Federation on the deforestation project also registered as a foreign agent of Norway after seeking its own advisory opinion from the Department of Justice. Waxman Strategies, a PR and lobbying firm chaired by former Rep. Henry Waxman, Democrat of California, was told it had to register for its work influencing corporations’ commercial product-sourcing practices through private meetings with businesses, media interviews and consumer-awareness campaigns.

“While we profoundly respect the mission of the FARA Unit, we don’t believe that FARA was intended to apply to public interest projects like forest conservation,” Waxman Strategies CEO Michael Waxman said in an emailed statement. “We undertook these efforts to advance core values of global justice and sustainability, rather than represent a specific institution’s interests. However, given the feedback of the FARA Unit and our support of transparency laws in general, we decided to register under FARA for these projects.”

After receiving its advisory opinion last year, Waxman Strategies separately registered as a foreign agent for Norwegian-funded projects with the Center for International Policy, a Washington nonprofit; Dutch nonprofit Aidenvironment; and the Belgium-based European Federation for Transport and Environment. The Department of Justice advisories to the National Wildlife Federation and Waxman Strategies suggest these groups may also have to register under FARA. None of the three nonprofits responded to requests for comment. Neither did NORAD or the Norwegian Embassy in Washington.