In-Depth: Sen. Chuck Grassley (R-IA) — one of the most vocal Congressional critics of existing FARA enforcement and compliance — introduced this bill to shine a light on foreign interests’ efforts to influence American policy and public opinion by adding teeth to existing law aimed at ensuring public awareness of lobbying campaigns pushed by foreign powers:
“If lobbyists or public relations firms are peddling policy preferences at the behest of foreign powers, we ought to know about it. Long before Special Counsel Mueller’s team sparked a renewed interest in enforcing the Foreign Agents Registration Act, I was raising concerns about undisclosed foreign lobbying and a lack of FARA enforcement. This bill gives the Justice Department new tools to detect and deter secret foreign lobbying and ensures policymakers and the American public know when influence campaigns are being pushed by foreign interests.”
Original cosponsor Sen. Dianne Feinstein (D-CA) adds that FARA is routinely ignored and punishment for failure to comply is nonexistent:
“FARA is meant to ensure one thing: that Americans working on behalf of foreign governments and political parties disclose those relationships. Unfortunately, this law is routinely ignored and too often enforcement is lacking. Our bill provides tools and resources in order to improve the enforcement of FARA in order to protect our electoral process and other institutions. We know that Russia, China and other foreign actors continue to work to influence Americans; FARA is one key tool to ensure they’re not successful.”
Ken Silverstein, a longtime Washington reporter and the creator of WashingtonBabylon.com, argues that the DOJ’s reluctance to enforce FARA, along with easy loopholes to get around it, are the real issues when it comes to FARA compliance:
“The Department of Justice’s own inspector general has confirmed just how toothless the FARA enforcement is. In September 2016, DOJ issued a report that tallied all the prosecutions under FARA since 1966—a total of seven. Only one of the individuals charged was convicted at trial; according to the report, two pleaded guilty to FARA charges, two were convicted on non-FARA charges and two saw their cases dismissed. An important reason for this lack of enforcement is that there are virtually no enforcers. The FARA team at DOJ is small, poorly funded and relies on voluntary compliance. According to a POLITICO story from October, ‘it usually investigates possible failures to register only when its staff reads about them in the media.’... And here's another trick that's even better, and it's not just used by Russia. Let's say a government wants a lobbyist or someone else to do some work for them in Washington. Maybe it's lobbying and maybe it's not exactly lobbying. The country simply has a major American law firm hire the lobbyist or PR executive, and now you're not lobbying for Russia, you're providing litigation support for a certified American law firm. And it's 100 percent legal and outside the purview of the ever more meaningless FARA statute. Makes you wonder why there’s a law at all.”
This bill has five bipartisan cosponsors, including three Republicans and two Democrats.
This bill is similar to Sen. Grassley’s Disclosing Foreign Influence Act from the 115th Congress, but with a few substantive and procedural differences. Most significantly, while the previous bill would’ve eliminated the LDA exemption, this bill only calls for an audit of the LDA exemption.
In the 115th Congress, multiple Senators introduced a wide array of FARA reform bills. Thus far in the 116th Congress, all the Senators that individually pushed FARA reform bills last Congress have come together in a bipartisan manner to champion this single bill.
Of Note: FARA was enacted in 1938 to combat foreign propaganda by requiring organizations and individuals engaged in lobbying or public discourse on behalf of a foreign government to register with the Dept. of Justice (DOJ) and disclose their funding and the scope of their activities. Under FARA, foreign lobbyists must register with the DOJ within 10 days of reaching an agreement with their foreign clients and file a copy of their contract at the same time. Then, they must file semi-annual reports on everything they did for their foreign clients and any funds exchanged, including any political contributions made by lobbyists. Additionally, any promotional materials sent on behalf of foreign clients to more than one person must be filed with the Justice Department within 48 hours of distribution.
However, compliance with FARA is very low, and the DOJ Office of the Inspector General (DOJ OIG) reports that penalties for FARA violations are currently “exceedingly rare.” In fact, from 1966-2015, the DOJ brought only seven criminal FARA cases, resulting in only three convictions.
In a 2016 audit, the DOJ OIG found “widespread delinquency” in FARA compliance rates. In a review of documents filed from 2013-2015, the DOJ OIG found:
- 62 percent of new registrants filed their documentation late;
- 50 percent of those already registered failed to file their semiannual reports in a timely manner;
- 61 percent of registrants failed to file their informational materials within the required 48-hour period; and
- 47 percent of information materials didn’t meet a requirement that they disclose that they were distributed on behalf of a foreign power.
The DOJ’s auditor’s concluded, “these compliance rates are unacceptable.” The Project on Government Oversight (POGO), looking at DOJ’s findings, found that one reason for the poor FARA compliance was DOJ’s reliance on “voluntary compliance” to enforce the law.
The FBI disagrees with DOJ’s position, as its agents believe that more aggressive prosecution of people who haven’t registered under FARA would discourage a range of activities, including spying. However, FBI agents can’t pursue FARA cases without the DOJ’s backing, and the DOJ’s enforcement unit is reluctant to pursue criminal charges because it believes it’s difficult to prove “willful violation” (the standard needed to charge under FARA) in most cases.
Outside of Congressional legislation, the DOJ has taken its own steps to promote FARA compliance. In June 2018, the DOJ published approximately 50 redacted advisory opinions issued on FARA since January 2010. Before this, there had been only three publicly available opinions. Lawfare speculates, “The Justice Department’s stated commitment to greater transparency in how it enforces FARA suggests that more advisory opinions will be published in the future, further enhancing public understanding of a law that has become a significant tool in the government’s approach to addressing foreign influence operations in the United States.”
There has been increasing scrutiny of FARA’s effectiveness due to recent high-profile battles over foreign influence in American politics and public policy. Special Counsel Robert Mueller’s investigation produced seven criminal prosecutions related to FARA, including that of former Trump campaign manager Paul Manafort, who was indicted under FARA violations. Notably, the seven criminal prosecutions that Mueller’s investigation precipitated comprise nearly half of all FARA prosecutions since FARA was last updated in 1966 (there have been only 15 FARA-related criminal prosecutions from 1966 to 2019).
Summary by Lorelei Yang(Photo Credit: Mike Licht, NotionsCapital.com via Creative Commons)