We have observed a significant amount of confusion lately regarding the Foreign Agents Registration Act of 1938, as amended (FARA), and when it applies. FARA was originally enacted to counter Nazi propaganda just prior to World War II, and has remained largely unchanged since. Below we provide a brief primer on FARA and its relationship to the better known Lobbying Disclosure Act.
FARA is a foreign agent disclosure statute administered by the U.S. Department of Justice (DOJ). Under FARA, agents of a foreign principal must disclose certain activities, including fees and expenditures. Individuals representing foreign governments or foreign political parties must register under FARA.
An "agent of a foreign principal” or "foreign agent" under FARA is anyone who, on behalf of a "foreign principal," engages in political activities, acts in a public relations capacity, solicits or dispenses anything of value within the United States, or provides representation before any agency or official of the U.S. government.
A "foreign principal" is a foreign government or political party, a person outside the United States (unless a U.S. national), or a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country. An entity organized under U.S. law is not a foreign principal. However, if an entity organized under U.S. law is owned or controlled by a foreign entity, and the activity undertaken benefits the foreign entity, then the foreign agent may be required to register under FARA (e.g., a U.S. subsidiary acting at the instructions of its foreign parent). Note however, that there is an exemption from registering under FARA where the lobbying activity is only in the form of "private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal." Other exceptions under FARA include certain religious, scholastic, and scientific activities and legal representation during a judicial or administrative proceeding.
Registration and Disclosure
Foreign agents must register with the Attorney General within 10 days of being hired using the Registration Statement form. There is no FARA de minimis rule – registration is required even if the work is done on a pro bono basis. Foreign agents must file reports within 30 days of the end of the semiannual reporting period using the Supplemental Statement form. FARA registrations and semiannual reports must disclose registrant information, foreign principal information, payment and expenditure information, and specific representational activities. Individuals affiliated with a FARA registrant and actively involved with the representation must disclose certain information on a Short-Form Registration form, including political contributions made within the 90 days prior to the initial filing, and throughout the period that the person remains registered. Written and recorded materials distributed in furtherance of a FARA regulated activity must be specifically marked with identifying language.
FARA vs. LDA
The Lobbying Disclosure Act of 1995, as amended (LDA), is a lobbying disclosure statute administered by the U.S. Congress. The LDA requires disclosure of lobbying activities, including the issues lobbied and payment and expenditure amounts related to lobbying. The LDA is enforced by the U.S. Attorney for the District of Columbia and violations are subject to fines and in some cases prison time.
The bottom line on FARA vs. LDA is as follows:
- Lobbyists representing U.S. clients must register under the LDA.
- Individuals representing (1) foreign governments or (2) foreign political parties in attempts to influence the U.S. government or any portion of the U.S. public regarding U.S. policy toward a foreign place must register under FARA.
- Individuals lobbying on behalf of foreign individuals or entities for private and nonpolitical activities in furtherance of trade or commerce must register under the LDA if their activities meet the definition of lobbying under the LDA.
FARA and the LDA are mutually exclusive in that if properly registered under one, an individual is not required to register under the other. However, the choice is not solely in the hands of the individual. If the lobbying is on behalf of a foreign principal and is meant to influence the U.S. government or any portion of the U.S. public regarding U.S. policy toward a foreign place, then the choice is limited to FARA.