The scope of the Foreign Agents Registration Act (FARA) appears to have been expanded once again as the U.S. Department of Justice (DOJ) recently asked a U.S. nonprofit organization (NPO) to register under the Act because it received a grant from the Norwegian Agency for Development Cooperation (NORAD) to address deforestation in Indonesia and South America. FARA requires registration and disclosure by those acting for or behalf of foreign governments and entities.
This DOJ request raises serious concerns for U.S. NPOs that accept or rely on grants from foreign government agencies, and undermines the perception of NPOs as independent.
Responding to a request from DOJ, the National Wildlife Federation (NWF) registered as a foreign agent in early June 2020. In that registration, NWF explained that it “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. Likewise, the grant Agreements does not give Norad any ability to direct or control NWF.” It adds that it does not consider the activities under the grant “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.”
A March 2020 Advisory Opinion from DOJ that has been redacted of any identifying information appears to be directed at NWF, as it refers to a U.S. nonprofit organization focused on environmental conservation. In it, DOJ explains that a party must register under FARA if it acts
“in any . . . capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal and who directly or through any other person,” and within the United States:
(i) engages in political activities for or in the interests of such foreign principal;
(ii) acts as public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
(iii) solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or
(iv) represents the interests of such foreign principal before any agency or official of the Government of the United States.
DOJ goes on to disagree with the NPO’s assertion that its agreement with the foreign government agency does not give it any ability to direct or control the NPO. Instead, DOJ asserts that under the grant agreement, the NPO is “obligated to engage in activities to advance the deforestation priorities” of the foreign government.
According to an undated DOJ memo titled “The Scope of Agency under FARA,” whether a person is an agent for purposes of FARA “depends on whether the relationship between the foreign principal and the person is such that the latter’s enumerated activities within the United States may be fairly attributed to a foreign principal.” It goes on to state that the Act’s definition of “agent” is expansive enough to include conduct that is undertaken on behalf of a foreign principal even without a formal relationship. At the same time, the memo explains, the foreign principal must exercise some form of control over the agent before the Act is triggered. There must be some level of power by the principal or some sense of obligation on the part of the agent, the memo states.
This NWF registration comes just under a year after DOJ directed a U.S.-based public relations firm to register under FARA after it was hired by three U.S. NPOs to influence “the behavior of U.S. companies with respect to their [text deleted] policies concerning [text deleted] supply chain and product sourcing …” The DOJ Advisory Opinion in this case emphasized FARA’s definition of “political activities” as those that “a person believes will, or intends to, in any way influence any section of the public within the United States ‘with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.’” DOJ explained that the PR firm’s work in this case satisfied the definition of “political activities” because those activities were intended to “advance the product-sourcing practices that are in the political and public interests of, and the policies of, the government of” a foreign country.
Other environmental groups, along with an Iranian-American advocacy organization, have been the target of FARA-related inquiries in Congress. In June 2018, the House Natural Resources Committee, in an “examination of foreign influence on U.S. natural resource and environmental policy,” sent letters to the Natural Resources Defense Council and the Center for Biological Diversity demanding extensive information of their advocacy activities. In doing so, the Committee used FARA in an attempt to equate traditional policy advocacy with being an agent of a foreign government. In early 2020, three Senators wrote to DOJ requesting that the National Iranian American Council (NIAC) be investigated under FARA, alleging it of “amplifying regime propaganda.” A letter supporting NIAC, signed by dozens of organizations, said “these tactics have no place in our political process.”
Prior to investigations into Russian interference in the 2016 presidential election, FARA was an obscure law. Since 2016, at least two dozen bills intended to strengthen the law have been introduced in Congress. One of the most recent is HR 7063, introduced in May 2020, which would limit the exemption from registration under the Act. FARA currently excludes persons engaging in religious, scholastic, academic, scientific activities fine arts activities from its requirements.