The Foreign Agents Registration Act (FARA), a disclosure statute enacted in 1938, was designed to limit the influence of foreign governments and foreign “propaganda” in the United States. Congress is looking to update this legislation and strengthen its enforcement.
On April 23, InterAction and 45 member organizations submitted an open letter to Congress about FARA, calling for better targeting provisions that could adversely affect the NGO community.
To improve understanding of the Act and its potential impact on nonprofits, we’ve identified and answered 5 frequently asked questions about FARA.
Why is there concern about increased enforcement of FARA?
While it is important for Congress to take actions to ensure that foreign governments do not undermine U.S. democracy, increased enforcement of FARA without first clarifying and better targeting the Act could have unintended, adverse consequences for non-profits in the United States. It would also establish a problematic precedent abroad where foreign agent laws have been used to target civil society.
FARA is both broad and vague. Under the current language of the Act, a non-profit would arguably have to register as a “foreign agent” for a wide range of innocuous activities. For example, a U.S. non-profit may have to register if it solicited money in the United States for an educational non-profit abroad, distributed hurricane relief paid for by a foreign foundation in the U.S., or set up a public meeting on a public policy issue in the U.S. at the “request” of an international partner organization.
Isn’t FARA just a transparency statute? Why would a non-profit have a problem with registering?
Registering as a “foreign agent” is both highly stigmatizing and burdensome. An organization must report a long list of information which is publicly available to the Justice Department. This includes the home addresses of officers and directors, the year of birth, home address, and citizenship of all employees working on covered activities, and whether “informational materials” will be distributed to “civic groups.” Not only must covered non-profits register under the Act, but each individual employee working on covered activity must submit their own individual registration form. A non-profit would need to include a “conspicuous” statement that it is acting on behalf of a foreign principal on all covered “informational materials.” Failure to comply with the terms of the Act could lead to criminal penalties, including up to five years in jail.
Has the Justice Department enforced FARA against non-profits in the past?
Historically, FARA has rarely been enforced. However, on occasion, the Justice Department has enforced FARA against non-profits. Most famously, in 1951 the Justice Department prosecuted civil rights leader W.E.B. Du Bois for failing to register as a “foreign agent” because a non-profit he founded, the Peace Information Center, circulated pro-peace material in the United States that it collected from Europe and elsewhere. In the run-up to the Korean War the federal government disfavored such activity. Du Bois faced five years in prison despite having dissolved his non-profit after being asked to register. The case of Du Bois highlights how FARA’s broad wording can be used by the federal government to engage in politicized enforcement against organizations or persons holding views with which it disagrees.
Don’t the exemptions in FARA protect non-profits from registering?
There are exemptions in FARA, but they are more limited than many appreciate. There is an exemption for “bona fide trade or commerce” as well as for “bona fide” religious or academic pursuits. There is also an exemption for soliciting funds for medical aid, food, or clothing to relieve human suffering. However, a broad range of non-profit activities are not covered. For example, soliciting money for a foreign non-profit to build schools or housing abroad would not be exempted, nor would most advocacy by a non-profit in the U.S.
Why is it important to clarify who is classified as an “agent” under the Act?
FARA defines the term “agent” to mean “any person who acts as an agent, representative, employee, servant, or any person who acts in any other capacity at the order, request, or under the direction or control” of a foreign principal. This is a significantly broader definition than traditional principal-agent definitions. For example, under FARA someone acting at the mere “request” of a foreign entity or individual could unintentionally become an “agent.” Justice Department regulations have not provided further clarification on the scope of the agency requirement. As the Congressional Research Service has noted, this has created “confusion” about when an individual or entity becomes an “agent” under FARA by the few courts that have interpreted this provision.
This lack of clarity about the breadth of the agency relationship is unhelpful for everyone. It frequently makes it difficult for organizations or individuals to know if the Act applies to them. It also makes it difficult for the Justice Department to create an enforcement strategy when a key provision in the Act is so ambiguous.
About the Author: Nick Robinson is a Legal Advisor at the International Center for Not-for-Profit Law (ICNL). For more on ICNL’s work on FARA see here.