On April 5th, the House of Representatives Committee on the Judiciary held a hearing entitled “Enhancing the Foreign Agents Registration Act of 1938.” The Foreign Agents Registration Act (“FARA”). The hearing—the first dedicated to FARA in 30 years—focused on potential changes to the law as well as its current limitations.
The hearing included the following witnesses:
- Dylan Hedtler-Gaudette, Government Affairs Manager, Project On Government Oversight
- Dr. Jacob Strauss, Specialist on the Congress, Congressional Research Service
- Nick Robinson, Senior Legal Advisor, U.S. Program, International Center for Not-For-Profit Law
- Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director, Environmental Law Advocacy Center, The George Washington University Law School
Committee members and witnesses discussed how to balance the transparency purposes of FARA without infringing upon the First Amendment-protected activities regulated by the statute – a tension Congressional Research Service historian Dr. Jacob Strauss told the committee existed even at the time of the law’s passing.
Mr. Robinson pointed out that the Department of Justice has issued over 50 advisory opinions on FARA’s definition of “agency,” noting that its requirement that the agent act at the “request” of the foreign principal is broader than more commonly used definitions of “agency,” which requires acting at the direction or control of another with the consent of both parties. Mr. Robinson contended that more precise definitions of key terms was required to better tailor the law to its purpose.
Mr. Hedtler-Gaudette argued for eliminating the Lobbying Disclosure Act (“LDA”) registration exemption, saying it is insufficient for FARA’s transparency goals. He also urged Congress to act on standardizing and modernizing FARA filings, noting that some may be inaccessible to people with disabilities.
Other witnesses pointed out First Amendment concerns with the statute, arguing that it is a largely ambiguous statute that is inconsistently applied. The law’s civil injunctive remedy and its criminal penalties also concerned some lawmakers, who raised the possibility of the law’s being weaponized against political opponents.
Ultimately, the hearing was reflective of the increased interest in FARA by lawmakers and the public alike. With the Department of Justice’s anticipated Notice of Proposed Rulemaking set to make modernizing changes to the law, it is likely that many of the concerns raised in the hearing will be addressed.
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