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FARA Files: Comparing FARA with Foreign Registries Overseas

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The discussion on FARA reform has been bouncing around legal and policy circles in recent months. Yet, it is curious that neither in the American Bar Association’s report on the matter, nor the Justice Department’s audit on the law, there is no language comparing the U.S. regulations on foreign agents with that of other countries.

Surely, the United States isn’t the only nation grappling with the same issues spelled out by the F.B.I. namely, enforcement, clarity, and compliance in addition to more topical concerns such as Russian and Chinese meddling or the digital realm.

As it currently stands, the U.S. is not alone in this arena, but it has few standing alongside.

In 2021, the European Union published a report on lobbying and foreign influence and found that only three members of the OECD “have rules in place that cover foreign influence” and those three are Australia, Canada, and the United States (p.1). The E.U.’s report served as a call-to-action for European policymakers to address the influx of foreign campaigns in the bloc.

Australia and Canada are both newcomers to the realm of regulating foreign activities, such as lobbying, with Australia’s Foreign Influence Transparency Scheme coming online in 2018 and Canada’s Registry of Lobbyists being formed in 2008. The E.U. has had a registry for lobbyists since at least 2011, but it wasn’t operated jointly by the three branches of the E.U. until 2021.

Both Canada and the E.U.’s registries are for both foreign and domestic lobbying, similar to lobbying disclosure database in the U.S., but they differ in some respects.

First, neither have a database specifically for foreign agents and their principals like FARA does for the United States. Second, although Canada’s registry does require foreign agents to disclose activities, it does not necessarily track which registrants are foreign and as such, according to the previously cited E.U. report, the Canadian government has “no means to measure the exact number of such foreign agents.” And finally, the E.U.’s Transparency Register requires “think tanks, research centers, and academic institutions to disclose their funding” and requires disclosure of indirect lobbying efforts (p.2).

Australia’s registry, however, does specifically focus on foreign agents and their domestic representatives. But Australia has struggled with compliance issues, like the U.S. has for several decades. In 2018, on the eve of the Foreign Influence Transparency Scheme Act coming into effect, several prominent Australian lobbyists and advisors resigned their posts.

Andrew Robb’s resignation from Landbridge Group as a consultant is most curious, as Landbridge is a Chinese firm with a close relationship to the Chinese Communist Party and deep financial investments in Australia, including a 99-year lease on the critical northern port of Darwin.

The U.K. is also seeking to strengthen its laws regarding foreign lobbying and communications. In July 2020, the British government released the Russia Report which detailed the recent history of Russian efforts to meddle and disrupt British society, particularly surrounding the Brexit referendum in 2016. The report makes explicit reference to FARA as a potential model for future U.K. legislation (p.33).

It’s startling that so many of our closest allies have no equivalent to FARA or have only begun to do so in the last several years. It also raises some questions about the strength of our own disclosure requirements.

In a world where economies and businesses are almost defined by their interconnectedness, and where the incentive to play ball anonymously is so strong, can we trust that a FARA registrant working for a client from, say, Luxembourg, is actually working for a Luxembourgish agent rather than a Russian oligarch that hired someone indirectly, perhaps through a tax-haven-centered shell corporation, from Luxembourg?

Of course that is a rather elaborate scenario, but the modern world is full of such elaborate schemes. Vladimir Putin, for example, claims to make a modest $140,000 salary as president of the Russian Federation, but there is evidence that suggests Putin could be among the richest men on Earth. And the Panama Papers, a document dump culled from Mossack Fonesca, a major offshore law firm, reveals a scheme almost as elaborate as the hypothetical one laid out above.

Panama is a well-known tax-haven.

As more and more governments around the world take action on malign foreign activities in their domains, and as they look to the U.S. for guidance on the matter, it might prove too tall a task for any one nation (as the last 80 years of FARA enforcement has demonstrated). Piecemeal legislation from over two dozen countries may only complicate matters while discouraging compliance.

There is an opportunity for America and her allies to approach this problem together, especially considering the parallel threats of Russian and Chinese belligerence, in a cohesive and multilateral manner. If countries keep going at this alone, then it wouldn’t be a stretch to imagine, for instance, the prospective British attempts would run into the same issues as the American and Australian regulators have. Indeed, this is part of why the E.U. is pushing for a bloc-wide effort to address foreign influence (p.3).

Beyond that, there is little, if any discussion on aligning strategies to combat these threats that, in light of the COVID-19 pandemic and Russia’s second invasion into Ukraine, demand solidarity among the U.S. and her allies.

Check back next week for another edition of The FARA Files.