Congress Contemplates Changes to the Foreign Agents Registration Act (FARA)

On October 31, 2017, Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, introduced S. 2039, the Disclosing Foreign Influence Act. An identical bill, H.R. 4170, was introduced in the House by Congressman Mike Johnson, a member of the House Judiciary Committee. These proposed bills would remove the current exemption under the Foreign Agents Registration Act of 1938, as amended (FARA), for registrants properly disclosing under the Lobbying Disclosure Act of 1995, as amended (LDA). This FARA exemption was originally provided by Congress in 1995 for registrants disclosing activities on behalf of foreign private sector entities and was retained during a major re-write of the LDA in 2007.

The proposed bills would also alter the FARA filing schedule for the disclosure of activities on behalf of foreign private sector entities from semi-annual to quarterly filings to conform with the LDA filing schedule. Interestingly, this proposed filing frequency change would specifically not apply to the disclosure of activities on behalf of foreign governments or political parties. A related feature under the LDA is that the definition of the term “lobbying contact” does not include a communication that is made on behalf of a foreign government or a political party and disclosed under FARA.

In addition, the bills would enhance FARA enforcement and compliance by allowing the Department of Justice to issue Civil Investigative Demands and would require the Government Accountability Office to evaluate the effectiveness of the enforcement and administration of FARA. Many of these provisions were previously recommended in a 2016 DOJ Inspector General report. Interestingly, S. 2039 and H.R. 4170 do not increase civil or criminal penalties for FARA violations. Currently, violations of FARA are punishable by a fine of $10,000 and up to 5 years in prison. By comparison, violations of the LDA are punishable by a fine of up to $200,000 per violation or up to 5 years in prison.