Shining a light on antiquated foreign influence oversight

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After giving the issue little to no attention for decades, lawmakers are revisiting the 80-year-old law that oversees foreign influence and lobbying.

The Foreign Agents Registration Act (FARA), which tracks foreign agents or lobbyists who work on behalf of foreign governments and other foreign entities, has long been considered outdated and difficult to enforce. That could change, as the Department of Justice (DOJ) and members of Congress are showing newfound interest in countering foreign influence and lobbying campaigns.

The Center for Responsive Politics (CRP) and Project On Government Oversight (POGO) have asked that the Congress explore modernizing DOJ’s FARA unit, specifically to create an online filing system that keeps track of foreign lobbying efforts and spending in a timely and accurate manner.

FARA reporting currently requires filers to submit data using an e-filing system in either image or PDF formats, effectively destroying critical aspects of the data included in the original formats and making automated calculations impossible. Essential information about foreign influence activities remains locked away in hard to digest image files that complicate the process of publishing FARA information in a machine-readable format. Even the basic disclosure of how much money they spend and which government officials lobbyists meet with is obscured.

Lydia Dennett, deputy director of investigations at POGO who has investigated FARA since 2011, noted foreign lobbying documents are difficult to comprehend as they are often filled out by hand — some are even scribbled on with sharpie markers.

“The fact that there isn’t a real structured, formal, digitized filing system makes it really difficult to see what’s going on and really undermines the transparency intent of the law,” Dennett said.

The law has not kept up with technological advancements in many ways, Dennett said. Informational materials, any content used by registrants to influence lawmakers, are supposed to be disclosed within 48 hours of delivery but typically aren’t filed on time — or at all — and nobody seems to agree on what communications should be disclosed.

“The term ‘informational materials’ does not have a definition in the law, let alone does it address the issue of social media or the advent of the internet in any way,” Dennett said. “That’s a huge problem, especially given the fact that these forms have a lot of information in them, from the exact contacts to all of the political contributions that lobbyists are making.”

CRP launched Foreign Lobby Watch to provide the public with a more digestible version of FARA and to display how much money foreign entities are spending on their foreign lobbying and influence operations. But other issues related to FARA’s lackluster enforcement mean the law doesn’t provide citizens with the full story of foreign influence.

A 2016 audit by the DOJ inspector general described the lack of compliance with FARA as “unacceptable,” noting that more than half of the most important documents are filed late. DOJ’s FARA unit has only pursued criminal charges eight times in the last 50 years has not used its other enforcement measure, asking a court for a civil injunction, since 1991, Dennett said.

The pre-World War II law has received newfound attention in recent years following reports of Russian influence in the 2016 U.S. election and the indictment of Paul Manafort for failing to register under FARA. Republicans and Democrats in both the House and Senate introduced a number of FARA-related bills in 2018 — far more than Dennett was used to seeing.  

“It’s a renewed focus on foreign influence more broadly, not just in the election but things like the Confucius Institute that the Chinese government is setting up in association with a lot of U.S. schools and universities as well as the multi-million dollar partnerships with D.C. think tanks,” Dennett said. “This sort of ‘soft power’ of foreign influence and the influx of millions and millions of dollars has peaked a lot of lawmakers’ interests.”

House Democrats’ H.R. 1 — passed on a party-line vote last week — would allow DOJ to levy civil fines against those who do not comply with the law. Sen. Chuck Grassley (R-Iowa) plans to reintroduce the 2017 Disclosing Foreign Influence Act to close a loophole where foreign companies can register under the domestic-focused Lobbying Disclosure Act.

The renewed focus on foreign influence extends to the executive branch, too. DOJ last week announced it will revamp its FARA unit to aggressively pursue violations of the law, bolstered by the hiring of former Mueller prosecutor Brandon Van Grack to lead the effort.

John Demers, head of the DOJ’s national security division, told reporters that FARA will shift from being treated “as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority.”

The new initiative has the potential to bring countless foreign influence campaigns to light — but only if it is combined with comprehensive congressional action to make the law more transparent and enforceable.

 

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