Task Force on FARA Releases Report

The American Bar Association created a task force on the Foreign Agents Registration Act (FARA) made up of attorneys who deal with FARA related matters and inquiries. Yesterday, that task force released the report “FARA: Issues and Recommendations for Reform” which outlines in 53 pages the reforms they say are needed to fix the law.

Matthew Sanderson, editor of FARA.us and co-leader of the Political Law Group at Caplin & Drysdale, services as the co-chair of the Task Force on Foreign Agents Registration Act. Below is the executive summary from the report.

SECTION II: EXECUTIVE SUMMARY

The Task Force recommends multiple reforms of FARA, its implementing regulations, and DOJ policy and practice. Indicative of the balanced but sweeping approach the Task Force brought to its effort, the Task Force at all times considered the national security considerations that underlie FARA while seeking to reframe the regulatory regime in a manner that is both more tightly tethered to the law’s fundamental purpose, and more likely to produce public understanding and compliance.

The Task Force’s key recommendations to Congress related to FARA reform are as follows:

  • Congress should rename FARA and otherwise replace the term “agent of a foreign principal” with a term that elicits less stigma and causes less confusion.
  • Congress should narrow the statute’s “foreign principal” definition to focus on foreign governments, foreign political parties, and those acting on their behalf.
  • Congress should adjust the “agent of a foreign principal” definition to eliminate the word “request” and clarify the phrase “in major part.”
  • Congress should change how FARA applies to media organizations by reformulating its legal standard to hinge on direction and control of content distributed within the United States.
  • Congress should harmonize the FARA and Lobbying Disclosure Act (“LDA”) disclosure regimes by requiring additional detailed information from filers under the LDA and by mandating that potential “agents” who want to avail themselves of the FARA exemption for LDA registrants to affirmatively check a box indicating that they intend to do so on the LDA registration form.
  • Congress should institute a new requirement under FARA for each foreign principal to certify under penalty of perjury that the information submitted by the foreign principal’s “agent” on Exhibit A and Exhibit B (and any amendment to these forms) is correct.
  • Congress should amend the statute to provide more certainty surrounding the treatment of informational materials and the protection of filers’ private information.
  • Congress should repeal the filing fees associated with FARA submissions. 1 The Task Force thanks Michael Rondon at Wiggin and Dana for his meticulous assistance in preparing this report for submission to the International Law Section.
  • Congress should grant DOJ authority to issue civil investigative demands in furtherance of administrative inquiries and to impose civil monetary penalties for FARA violations, and should update statutory language related to criminal penalties for violating FARA.

The Task Force also makes the following recommendations to DOJ concerning its policies and practices related to FARA:

  • DOJ should publish new public guidance to clarify the term “political consultant,” which is one of the ways that a person can become an “agent of a foreign principal.”
  • DOJ should issue clarifying guidance about what it means to “directly promote the public or political interests of a foreign government,” which is a key phrase found in two important FARA exemptions.
  • DOJ should issue new regulations that apply the statutory exemptions at 22 U.S.C. § 613(d)(1) and (d)(2) to situations other than state-owned enterprises.
  • DOJ should issue new public guidance and revise its regulations to interpret the FARA exemption for certain legal representations more clearly.
  • DOJ should replace “the principal beneficiary” standard in its regulation interpreting the FARA exemption for LDA registrants with a standard that focuses on the purpose of the potentially registrable work.
  • DOJ should publish more Advisory Opinions and Letters of Determination with fewer redactions, and should resume inclusion of enforcement activities in its updates to Congress.
  • DOJ should change its policies and practices to provide more certainty surrounding the treatment of informational materials and the protection of filers’ private information.

Please note that, although the Task Force recommends that certain terms be replaced or removed from the statute and its implementing regulations, this report uses terms as they appear in current law (e.g., even though the Task Force recommends replacing “agent” with “representative,” the report presents other suggested amendments using the term “agent” for consistency with current law). Please also note that the Task Force’s recommendations may not entirely cohere, such that if some recommendations are adopted then others may be unnecessary and superfluous.