Jason D’Antonio is a first-year law student at American University Washington College of Law. A graduate of Saint Joseph’s University in Philadelphia, Jason’s interests include Congressional investigations and regulatory enforcement matters.
In an increasingly globalized society, the United States government grapples with an issue as old as the republic itself: the integrity of public decision-making amid foreign influence.[1] To combat outside influence, Congress has recently reinvigorated its efforts to reform how the United States identifies and monitors foreign engagement.[2]
One of the latest bipartisan bills, the Preventing Adversary Influence, Disinformation and Obscured Foreign Financing Act (PAID OFF Act), introduced by Senators John Cornyn (R-TX) and Marco Rubio (R-FL), sought to address loopholes within the Foreign Agents Registration Act (FARA) presented by other federal statutes.[3] Senator Cornyn has called these loopholes a “serious problem” and claimed the bill would prevent “back-alley attempts by our enemies to influence American policymaking.”[4]
Cornyn’s concern is not new. The fear of foreign encroachment dates back to the country’s inception, and as evident in Alexander Hamilton’s Federalist No. 68, mitigating foreign influence has been a principal concern.[5] The Framers subsequently infused this fundamental principle into the Constitution via the Emoluments Clause and Congress’ impeachment power.[6]
However, the modern mechanism to stem foreign influence is not rhetoric but transparency through FARA. Relatively broad in scope, FARA requires any “agent of a foreign principle” that participates in various actions – political activities, consulting services (e.g., public relations), financial activities, or lobbying – to register with the U.S. Department of Justice.[7] Individual violations of the statute warrant imprisonment for up to five years, a fine of up to $10,000, or both.[8]
The statute has become more prominent, with 522 current registrants compared to just 291 registrants in January 2016, with a total of 6,657 registrants since the bill’s passage in 1942.[9] Enforcement, although rare, is also gaining traction as the U.S. Department of Justice (DOJ) recently enforced a $4.6 million penalty on a prominent law firm for FARA violations in 2019.[10] However, FARA is not without its controversy. The policy has been accused of politicization and, despite its broad language, defects in scope and enforcement.[11]
The PAID OFF Act sought to address some of these deficiencies. For example, the DOJ Office of Inspector General released a report in 2016 noting that federal lobbying laws provided exemptions for lobbyists operating on behalf of foreign principals.[12] The Senate bill would eliminate exemptions available to foreign agent registrants under the Lobbying Disclosure Act, removing a key loophole that allowed agents to avoid FARA compliance.[13]
The PAID OFF Act is not Congress’ only effort to reform FARA in recent years. Prior sessions have seen bills such as the Foreign Agents Disclosure and Registration Enhancement Act of 2021 and its 2019 iteration, both sponsored by Senator Chuck Grassley (R-IA).[14] Unlike the Cornyn-Rubio bill, Grassley’s proposal undertook a more comprehensive approach, seeking to significantly increase penalties for violations.[15] The bill also provided due process protections by limiting which DOJ units could prosecute under the statute.[16]
Last session, a bipartisan House effort led by Rep. Jared Golden (ME-02) likewise sought to increase reporting requirements for think tanks and political campaigns, specifically requiring campaigns to verify that every online contribution came from a valid U.S. address.[17] Additionally, the bill would ban former Members of Congress and senior military officers from registering as foreign agents.[18]
In addition to structural issues presented by Congress, FARA has also struggled to adapt to modern influence threats such as disinformation campaigns on social media.[19] For example, FARA requires conspicuous labels on information materials, including social media posts.[20] However, some platforms (e.g., Twitter) have space limitations and make compliance almost impossible.[21]
On a strategic level, disinformation from online bots run by foreign agents poses a well-known threat to our democracy.[22] Joshua Fattal, an attorney-advisor at the U.S. Department of Homeland Security, notes that the limited case law on the subject area presents fundamental differences in the statute’s interpretation.[23] At the same time, technological advancements hinder other parts of the statute.[24] Although not without constitutional challenges, Fattal provides several policy solutions, including page labeling and public-private information sharing.[25] If Congress were to take comprehensive action surrounding FARA and tech platforms, Fattal argues that it would need to define a clear regulatory scope, create and implement standardized systems, and consider ramifications on the U.S. economy.[26]
Hamilton’s warnings over foreign influence, although written 235 years ago, are undoubtedly salient today.[27] While complex and ever-changing, members of all three branches have signaled that FARA is in critical need of improvement to address existing deficiencies and tackle new issues.[28] But only Congress is uniquely positioned to enact meaningful and comprehensive reform, clearing the fog of FARA.
[1] Att’y Gen. of U.S. v. Wynn, No. CV 22-1372 (JEB), 2022 WL 7002845, at *1, *9 (D.D.C. Oct. 12, 2022) (Boasberg, J.) (“[T]he Court does not dispute that even agents who have since ended their agency relationship but who never registered their activities are still in possession of ‘information that [FARA] says the public needs.’ . . . While the goals of FARA are laudable, this Court is bound to apply the statute as interpreted by the D.C. Circuit. And that requires dismissal.” (citations omitted)).
[2] Andy Wright et. al, Foreign Agents Registration Act Reform: On the 2022 Agenda?, Just Security, Feb. 7, 2022 https://www.justsecurity.org/80110/foreign-agents-registration-act-reform-on-the-2022-agenda/
[3] Preventing Adversary Influence, Disinformation and Obscured Foreign Financing Act (PAID OFF Act), S.4901, 117th Cong. (2022).
[4] 166 Cong. Rec. 213 (2020); Rubio, Cornyn Introduce Bill to Prevent Foreign Adversaries from Influencing U.S. Policy, Marco Rubio: Press Releases (Sept. 21, 2022) https://www.rubio.senate.gov/public/index.cfm/press-releases?ID=90F43FE8-24AC-456D-9ED0-9BB19C5FAE0A.
[5] The Federalist No. 68 (Alexander Hamilton) (“[T]he desire in foreign powers to gain an improper ascendant in our councils” to sow corruption and is one of the “most deadly adversaries of republican government.”).
[6] U.S. Const. art. I, § 9; id. art. II, § 4.
[7] 22 U.S.C. § 612 et seq. (2021).
[8] Id.
[9] U.S. Department of Justice, https://efile.fara.gov/ords/fara/f?p=1381:1:7698054885001 (last visited Jan. 26, 2023).
[10] Prominent Global Law Firm Agrees to Register as an Agent of a Foreign Principal, U.S. Department of Justice: Office of Public Affairs (Jan. 17, 2019) https://www.justice.gov/opa/pr/prominent-global-law-firm-agrees-register-agent-foreign-principal.
[11] Monica Romero, How Far Will FARA Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy, 96 Wash. L. Rev. 695, 719-722 (2021) (arguing that FARA is easily politicized to put pressure on human rights organizations such as No More Deaths, an immigration advocacy entity); Wynn, 2022 WL 7002845, at *9.
[12] U.S. Department of Justice: Office of the Inspector General, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act 1-2, 5-6 (2016), https://oig.justice.gov/reports/2016/a1624.pdf (noting how active FARA registrations experienced a sharp fall following the passage of the Lobbying Disclosure Act in 1995).
[13] S.4901 § 2.
[14] Foreign Agents Disclosure and Registration Enhancement Act of 2021, S.1724, 117th Cong. (2021); Foreign Agents Disclosure and Registration Enhancement Act of 2019, S.1762, 116th Cong. (2019).
[15] S.1724 § 3(a).
[16] Id. §§ 2, 4.
[17] Fighting Foreign Influence Act, H.R.8106, 117th Cong. §§ 102(a)–(c), 302(a) (2022).
[18] Id. §§ 102(a)–(c), 202(a), 302(a).
[19] Joshua R. Fattal, FARA on Facebook: Modernizing the Foreign Agents Registration Act to Address Propagandists on Social Media, 21 N.Y.U. J. Legis. & Pub. Pol’y 903, 905 (2019).
[20] 22 U.S.C. § 614(b).
[21] Samuel Rebo, Facebook, FARA and Foreign Media, Lawfare (Sept. 16, 2020) https://www.lawfareblog.com/facebook-fara-and-foreign-media.
[22] See Fattal, supra at 925.
[23] United States v. German-American Vocational League, Inc., 153 F.2d 860, 868-869 (3d Cir. 1946) (adopting the Restatement (Second) of Agency definition to define agent); Attorney Gen. of U.S. v. Irish N. Aid Comm., 668 F.2d 159, 161 (2d Cir. 1982) (holding that the FARA definition of “agency” sufficed and defendant-appellant did not need to meet the criteria listed in the Restatement (Second) of Agency); Fattal, supra at 925. See also 22 U.S.C. § 614(b).
[24] Fattal, supra at 935–36.
[25] Id. at 937–43.
[26] Id. at 945–46.
[27] See Fattal, supra; The Federalist No. 68 (Alexander Hamilton).
[28] S.4901; Wynn, 2022 WL 7002845, at *9; U.S. Department of Justice: Office of the Inspector General, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act 5-6.
