Fixing the FARA Mess

The Foreign Agents Registration Act (FARA) needs to be fixed. After the 2016 presidential election, there was a marked increase in concern about Russian and Chinese influence in U.S. politics, and many turned to FARA as a potential answer. The Act has provided needed transparency around lobbying by foreign governments and led to recent high profile prosecutions, including of Michael Flynn and Paul Manafort. However, FARA’s notoriously sweeping provisions have increasingly interfered with the operations of nonprofits, businesses, media, religious institutions, universities, and others with limited or no connection to foreign governments in a manner that Congress never intended and that raises clear First Amendment concerns.

In response to the Justice Department’s recent announcement that it was considering major changes to FARA’s implementing regulations, the Department last month received a slew of critical public comments, including from the International Center for Not-for-Profit Law (ICNL), where I manage the U.S. Program. One media outlet called the widespread criticism a “five-alarm fire” for DOJ. An open letter signed by the ACLU, Americans for Prosperity, the NRDC, and other prominent nonprofits warned that “FARA’s overbreadth and vagueness can undermine and chill First Amendment rights to speech and association and the statute has a history of being used to target undesirable expressive conduct.” The Global Business Alliance, whose members include corporate powerhouses like Anheuser-Busch, Toyota, and Unilever, cautioned that FARA risked undermining U.S. democratic self-government by imposing excessive burdens on advocacy by those who have foreign connections, but are not acting on behalf of a foreign government.