Congress has responded to concerns about foreign influence in U.S. elections by introducing several bills to amend the Foreign Agent Registration Act (FARA), an obscure law requiring registration and disclosure by those acting “for or on behalf of” foreign governments and entities. (Background on FARA here.) On Jan. 17, 2018 the Judiciary Committee in the House of Representatives approved HR 4170 on a split vote, over-riding Democrats’ calls for a hearing and rejecting several amendments intended to address constitutional concerns. The International Center on Not for Profit Law (ICNL) has said that left unchanged, the current vague definition of a “foreign agent” in the law could lead to politically motivated enforcement and intrusive registration and reporting requirements.
HR 4170, the Disclosing Foreign Influences Act, was introduced by Rep. Mike Johnson (R-LA) in October 2017. It proposes new civil enforcement standards and procedures that would allow the Attorney General to compel production of documents and answers to written questions or oral testimony. While it includes a process to challenge such requests, Democrats on the committee said these are insufficient to protect constitutional rights in the event these civil powers are used for criminal prosecutions. The bill also eliminates the registration and disclosure exemption for those that file under the Lobbying Disclosure Act and requires the Department of Justice (DOJ) to develop a strategy for FARA administration and enforcement.
The version passed by the committee included two amendments: one from the bill’s sponsor establishing time periods for reporting by DOJ and one from Rep. Pramila Jayapal (D-WA) that requires electronic filing of FARA disclosure reports that is publicly available. A number of other amendments proposed by Democrats on the committee failed. These include:
Rep. Jamie Raskin (D-MD) amendment to limit the definition of an “agent of a foreign principal” in FARA to include only those who are “under the direction or control, of a foreign principal or of a person directed or controlled” by one. Currently the definition also includes those “whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal.” (emphasis added)As Raskin explained in the hearing (see transcript pages 85-87) the current definition is so broad that it defies common sense and is inconsistent with the common law definition of the agent/principal relationship. He presented a hypothetical situation in which Amnesty International asks a U.S. group to hold a fundraising concert, saying “I do not think answering that request makes them a foreign agent.” The bill’s sponsor opposed the amendment, saying it would lead to noncompliance with the law, but did not explain how that might happen.
Although committee chairman Bob Goodlatte opened the hearing by saying the bill is “aimed at acquiring greater transparency when entities advocate on behalf of foreign governments in the United States,” (emphasis added) the committee’s failure to narrow the definition could mean that rules meant to disclose agents of foreign governments and state-controlled businesses would be used against nonprofit organizations that receive grants, membership dues or otherwise engage in cooperative activities with foreign nonprofits. ICNL gives several examples of the over-reach that could result in this briefing paper.
A series of amendments offered by Rep. David Cicilline (D-RI) that sought to address constitutional issues with civil enforcement powers for criminal investigations were rejected by the committee. A letter from the National Association of Criminal Defense Lawyers explaining the consittutional issues was cited. Rep. Hank Johnson (D-GA) noted that the powers granted to the government in HR 4170 could “be used as a fishing expedition against political opponents…” [Transcript p. 34-35] The bill’s sponsor noted that a group of nonprofit organizations, including the Campaign Legal Center, Common Cause Issue One, Public Citizen and the Sunlight Foundation, which work on transparency issues, had written a letter in support of the bill. The letter does not address the issue of the definition of “foreign agent.”