In early June of 2022 law enforcement served a search warrant to John Allen, a retired four star general and president of the Brookings Institution, for his role in an elaborate illegal lobbying scheme for Qatar, a small but powerful nation on the Persian Gulf.
Just over a week later, Congressman Jared Golden (D-ME) and a group of bipartisan co-sponsors introduced H.R. 8106, also known as the Fighting Foreign Influence Act, to permanently prohibit former members of Congress, senior federal appointees, and generals and flag officers in the military from registering under the Foreign Agents Registration Act or as a foreign lobbyist “at any time”.
This is the first major FARA reform bill proposed since the American Bar Association (ABA) published a report on reforming the 84-year-old law in July 2021. But this bill wrangles with a subject the ABA totally avoided in its sixty-page report: the plague of senior federal officials, elected and unelected, registering as foreign agents.
In this installment of the FARA Files, we will examine what is in H.R. 8106, how it stacks up against previous attempts to reform FARA and the ABA’s report, and whether it has any chance at achieving its goals.
The bill is broken into three sections. Title I addresses disclosures for non-profits and their foreign backers. First, it requires all donations of $50,000 or greater, in aggregate, from a “foreign country” or “foreign political party” to be disclosed by name (p. 2-3). Existing FARA definitions for foreign countries and political parties do extend to individuals and affiliated groups—it even extends to “any faction or body of insurgents” regardless of official U.S. recognition (Sections E-F). Title One also requires these disclosures to be made publicly available in a searchable database (p. 3).
Title II is the Congressional and Executive Foreign Lobbying Ban. Here, the text is blunt in saying that “no individual may register under [FARA]… if the individual at any time served as a Member of Congress, as a senior political appointee, or as a general or flag officer of the armed forces” (p. 4-5). Title II additionally states that individuals in the aforementioned categories shall not register as a foreign lobbyist “at any time” (p. 6).
Title III focuses on foreign donations to political campaigns and is the longest part of the 11-page bill, although the first half of this section is not entirely relevant to this piece, focusing on credit card verifications and logging transactions. The second half of Title III circles back to FARA by prohibiting the agents of foreign principals from “delivering contributions to federal candidates” (p. 9-11). This prohibition extends to individuals exempted from FARA registration due to their existing registration under the Lobbying Disclosure Act of 1995 (p. 10 of H.R. 8106; Section 3(h) of the LDA).
This bill addresses a critical facet of FARA that the ABA’s report (hereafter the Report) on reforming the Act does not address which is who is allowed to register on behalf of a foreign principal. The Report stands in contrast to H.R. 8106 for being quite wonky and extensive (61 pages for the Report and just over 10 for the House bill).
The Report takes several pages to explore the pitfalls and potential remedies surrounding the definition of “Agents of a Foreign Principal” but does not raise the question of who should or should not fit the definition. The Report arguably misses the forest for the trees by devoting so much attention on the minutiae of how one word affects another piece of legislation.
The introduction to the Report suggests that it is meant to be “comprehensive” (p. 5); however, a better description may be necessary but insufficient.
The proposals laid out in the Report do reveal an exploitable flaw (despite not directly addressing it) with FARA as currently constructed. The Act has a “dual purpose” to both foster compliance to the law and to enforce the penalties for those who fail to comply (p. 53). In other words, the law is currently most concerned with paperwork.
But paperwork is not the only national security risk when it comes to foreign influence.
A recent piece by Responsible Statecraft revealed over ninety former members of Congress since 2000 went on to become registered foreign agents representing clients in dozens of countries, including Saudi Arabia, China, and Russia. Politicians from both parties trading their knowledge and influence in Washington for paychecks is a well-documented and widely practiced phenomenon, but questions about how to regulate that behavior are endless.
RS links to numerous filings by former Congressmembers and many do not disclose how much they are being paid. If you look at the foreign principal in the filings just linked, three are on behalf of Hikvision, a company blacklisted by the government several years ago. And the fourth is on behalf of Saudi Arabia (among others), who hired Norm Coleman, former Republican Senator from Minnesota, to rebuild the country’s image following the brutal murder of Jamal Khashoggi and the Kingdom’s bloody quagmire in Yemen.
This new research combined with the recent allegations regarding retired general John Allen all raise the specter of a growing problem with foreign influence in the United States. H.R. 8106 offers some surprisingly robust potential for reform, but let us not be too hasty.
We have been here before.
In 2012, following an appearance by best-selling author and co-host of the Drill Down podcast, Peter Schweizer, on 60 Minutes, that detailed numerous cases of Congressmembers making then-legal insider trades by virtue of being in Congress, a sweeping prohibition on the practice was passed in near unanimity by Congress and signed into law by President Obama.
The fanfare was remarkable, the praise was bipartisan, but the impact was swiftly neutered. The STOCK Act was gutted barely a year later, in the middle of the night, without debate or a recorded vote.
The amendment to the STOCK Act repealed the requirement for an online, public, and searchable database of disclosures on the premise that the data could be used by malicious actors. We have detailed some of the problems with that logic before, and given the disclosure and searchability language in the new House bill on foreign influence, one must wonder whether the bill has a similar fate to the STOCK Act of yesteryear.
Whatever the fate of H.R. 8106, we at the FARA Files will be watching closely.
