Guest Column, Lobbying law, New in Lobbying

Want to fix America’s foreign lobbying law? Learn from past reform failures

Since President Donald Trump‘s election, at least 44 bills to reform the Foreign Agents Registration Act (FARA) have been introduced in Congress.

None have been enacted.

This lack of congressional success in fixing FARA comes amid the back-drop of an unprecedented focus on the 1938 law after Russian interference in the 2016 poll. Since then, more than 20 individuals have been indicted for violating the law, even as the intelligence community recently assessed that Russia, Iran, and several other governments had attempted to interfere in last year’s elections.

Despite all of this, FARA remains unchanged. As a result, the US political system remains ripe for foreign meddling.

In the absence of congressional action to better regulate foreign influence in America, some states have felt compelled to fill the void and enact reforms of their own. But, the best solutions to protect the country from malign foreign influence have, and must, come from the Congress. Piece-meal approaches will only create more opportunities for malign foreign actors to exploit an already vulnerable US political process.

With this in mind, and with the hope of learning from the past to inform the present, the Foreign Influence Transparency Initiative (FITI) analyzed the more than 50 distinct FARA reform proposals that have been introduced since the law was last tweaked more than a decade ago as part of the Honest Leadership and Open Government Act of 2007. While none of these bills became law, they each offer possible solutions for amending the nation’s premier law regulating foreign influence. Collectively, they point toward a number of common themes and areas of focus that could form the cornerstone of a comprehensive approach to fixing FARA.

Take, for example, proposals to improve the law’s enforcement. At least 11 distinct bills have focused on this issue. Most notably, the issue of incorporating civil investigative demands and fines into FARA was a key part of many of these proposals.

Currently the only tools available to the Department of Justice to enforce FARA are, in effect, either sternly worded letters or criminal prosecution. Civil investigative demands and fines could serve as a compelling incentive for compliance between these two extremes.

While many proposals agree on the need for civil financial penalties, the range of suggested fines has been immense. For example, Rep. Marcy Kaptur (D-Ohio) introduced FARA reform legislation in 2016 that would allow for civil fines up to $5,000. At the other end, Rep. Seth Moulton (D-Mass.) in his FIRM Act sought to allow civil fines of up to $200,000 for FARA violations.

First is Subtitle B: the DISCLOSE Act. This provision clarifies that the federal prohibition on foreign campaign donations applies not only to candidate-based elections but also to ballot initiatives and referenda.  For years, the press and open-government groups have decried the FEC’s unwillingness (or inability)  to prohibit foreign funders’ involvement in ballot initiative campaigns.

Another common area of concern in these bills has been reforms to FARA exemptions, with 11 proposals to tackle this rather thorny issue. Most notably, a variety of bills, like the bipartisan Foreign Agents Registration Amendments Act of 2018, recommend abolishing the Lobbying Disclosure Act (LDA) exemption, which allows many foreign businesses to register under the less onerous LDA in lieu of FARA.

Other bills concerned with addressing confusion and loopholes surrounding FARA’s myriad exemptions — which persist despite the commendable work by the Justice Department to make FARA advisory opinions publicly available — include proposals to alter the legal representation exemption. Another proposal from Sen. Tom Cotton (R-Ark.) would repeal certain exemptions for “Chinese Business Organizations.”

While FARA enforcement reforms and the exemptions featured prominently, the most common focus area of FARA reform bills has been changes to filing requirements and the online database, with 14 distinct bills addressing these issues. Most proposals in this category, including the Foreign Agents Registration Modernization Act introduced by Reps. Ken Buck (R-Colo.) and Ro Khanna (D-Calif.), aim to improve the searchability and readability of FARA filings — a long overdue reform, as anyone who has attempted to search FARA’s database can attest.

Another common reform proposal in this category— offered by Rep. Mike Quigley (D-Ill.) in his Transparency in Government Act of 2019, for example — is to align the submission of FARA filings with the quarterly reports made by LDA registrants.

These, and many other previously introduced FARA reform bills, share common traits that could be readily combined into a more comprehensive FARA reform package. Collectively they provide at the very least a menu of options for updating FARA to address the realities of our current disinformation age.

There has also been a remarkable level of bipartisanship in these bills, with more than a third including co-sponsors from both parties. That, coupled with the fact that FARA reform proposals are being introduced in the current session of Congress seemingly every other week, indicates there is something of a bipartisan consensus for FARA reform now.

The best way to fix FARA then is to capitalize on this bipartisanship and the lessons of these past proposals. But, the time to act is now. The longer Congress and President Joe Biden wait to fix FARA, the longer the United States will remain vulnerable to malign foreign influence.


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