Investigations into Russian interference in the 2016 U.S. election has generated high interest in the Foreign Agents Registration Act (FARA), which requires registration and disclosure by those acting “for or on behalf of” foreign governments and entities. Several bills have been introduced in Congress to strengthen FARA. Such amendments have the potential to create problems for nonprofit organizations (NPOs) and should be closely monitored and analyzed if any move forward. FARA has been cited as a model to justify restrictive legislation in several countries that target NPOs and infringe on their rights of association, assembly and expression. This analysis provides background on FARA and links to summaries of foreign laws that distort FARA’s legitimate aims in order to close civil society space.
Background on FARA – 22 USC 611-621
Passed in 1938 to counter German propaganda in the years leading up to WWII, FARA is intended to create transparency on the communications of foreign governments, political parties, corporations and individuals so that the public can evaluate and make informed judgements. It applies to “political activities” broadly defined in Section 611(o) as:
In 1966, FARA was amended to focus on protecting the integrity of U.S. government processes by adding civil enforcement options to the existing criminal penalties and clarifying that the act applies to those acting for or on behalf of a foreign principal and “at the order, request, or under the direction or control, of a foreign principal.” (22 USC 611(c)(1)) Those meeting that requirement must register and file reports with the Department of Justice (DOJ) and label their public communications with a “conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal.” See DOJ FAQ on FARA here.
FARA’s requirements do not apply to the following:
FARA enforcement policy is focused on compliance, with few prosecutions for violators. See Memo on enforcement: DOJ Office the U.S. Attorneys.
In 2016, DOJ’s Inspector General released a review of FARA enforcement, requested by the House Committee on Appropriations, that found a decline in the number of FARA registrations and prosecutions. It cited the need for a comprehensive enforcement strategy at DOJ and improved enforcement. It noted that DOJ officials said they need increased authority from Congress to require production of documents from persons who may be agents in order to improve enforcement. The report cautions that while this may be useful, ‘there are important competing considerations at stake, and we believe that any expansion of such authority must also include appropriate controls and oversight to ensure it is used appropriately.”
U.S. nonprofits should closely track progress of any amendments to FARA in Congress, to ensure that any new law does not lower the bar for registration to the point that would subject grantmaking, fundraising, joint program operation and other legitimate activities by nonprofits to registration or intrusive investigations.
Some Countries Distort FARA to Justify Restrictions on Civil Society
Globally, there is a growing problem of governments that restrict civil society, often through laws that bar or limit receipt of foreign funding. FARA is sometimes used as justification for such laws. The International Center for Not-for-Profit Law’s October 2017 briefing paper FARA’s Double Life Abroad describes how “FARA’s broad language has made it easy for foreign governments to draw parallels between their legislation and U.S. law,” although FARA “has critical differences with legislation in other countries.”
ICNL warns that “steps to strengthen FARA are not used as a pretext abroad for constricting civic space” or require U.S. nonprofits to register. It then provides concrete examples of restrictive laws in Russia, Hungary, Ukraine, Israel and Kyrzyzstan.
The April 2017 edition of the International Journal of Not for Profit Law provides further background and analysis on how FARA has been distorted, noting three essential differences between FARA and the restrictive versions abroad:
1) FARA requires a principal-agent relationship: For FARA to apply, the principal must have control over the agent. As a result, the fact that a nonprofit receives foreign grants or donations does not mean it must register. This standard is not incorporated into laws restricting foreign funding for nonprofits.
2) FARA has exemptions (see above) while most foreign laws do not.
3) FARA does not specifically target civil society organizations: It applies to all persons who meet the criteria for a foreign agent, while laws in other countries target civil society, or a subset of groups that engage in activities the government does not like.