Protecting Democracy FARA

The conviction of President Trump’s campaign chairman, Paul Manafort, the recent arrest of President Obama’s former White House counsel, Greg Craig and Skadden Arps’ $4.6 million dollar settlement with the Department of Justice have thrust an obscure law into public view, the Foreign Agents Registration Act (FARA). Eighty years old and rarely enforced, the law had originally been designed to fight Nazi propaganda. But since the 2016 election more indictments for FARA violations have been brought than in the previous fifty years.

The idea that FARA could be used as one of the primary methods to combat foreign interference in democratic institutions has engendered a long overdue debate about this antiquated law. While the stakeholders in this debate disagree on many issues, there is general agreement that FARA is flawed and requires revision if the law is to be aggressively enforced.

While there is general consensus about the need for reform, every stakeholder group has found something about the law worthy of their ire. Those unsure of their obligation to register under FARA have bemoaned the “FARA feeding frenzy,” of increased enforcement. Good government groups, meanwhile, have been quick to point out that the new level of enforcement is relative to an extremely low bar of just seven criminal cases having been brought for FARA violations in the preceding fifty years. Civil society groups have raised concerns about FARA being used as a political weapon. Those concerns were borne out by last year’s seemingly politically motivated House Natural Resources Committee investigations, which alleged several prominent environmental nonprofits may need to register under FARA. Amidst the FARA furor, several law firms have established FARA advisory programs to help clients navigate the reporting requirements of FARA. Yet, good government groups have shown that many firms don’t actually fulfill FARA disclosure requirements. In addition, press freedom groups have warned about the dangers FARA-like proposals have posed to journalists abroad.

Congress has responded with an extraordinary number of proposals to reform FARA. The bills attempt to address concerns about FARA, including: limiting lobbying (LDA), religious, scientific, fine arts exemptions; revising reporting requirements (for foreign agents and the FARA Unit); expanding the FARA Unit’s enforcement toolkit; or by banning former political appointees from lobbying on behalf of foreign interests. In spite of this political will and bipartisan agreement none of these legislative proposals has ever made it to the floor of the House or Senate for consideration.

With such widespread political and public support, extensive legislative proposals already on the table, and a need to better defend American democracy, this is an ideal moment to pursue FARA reform. While stakeholder interests might be immensely varied, there are ample areas of overlapping concerns, and there are areas of FARA reform that merit prioritization

This conference will bring together experts from academia, the law, the private sector, and government to forge consensus on proposals for reform and formulate a plan to enact reforms on this critically important piece of legislation.