By Natalie Duffy & Victoria Korovatykh
December 14, 2016
Lobbying by foreign entities in the United States is governed by the Foreign Agents Registration Act (FARA) and Lobbying Disclosure Act (LDA). These laws both aim to restrict external interference in government decision-making by requiring disclosure of lobbying activities on behalf of foreign governments, political parties, businesses, or individuals.
However, many of these activities remain undisclosed and unnoticed because of gaps in the legislation and weak enforcement. This leaves the U.S. in a vulnerable national security position, and urgent, bipartisan efforts are needed to close the loopholes.
FARA vs. LDA
The graphic below illustrates the key differences between FARA and LDA. While both are concerned with lobbying regulation and have some similarities, they are divergent in their requirements and guidelines.
Agents should register under FARA if they represent foreign political interests and under LDA if they represent foreign commercial interests. In cases where political and commercial interests overlap—and there are many—agents generally prefer to register under LDA as it requires less detailed reporting of lobbying activities.
Despite being America’s primary legal shield against foreign political interference, FARA currently contains numerous loopholes. For example:
- Registrants are required to file informational materials only if they have been distributed to more than one individual. They should be required to file if they distribute any informational materials.
- Meetings between American officials and foreign nationals on behalf of foreign politicians which take place abroad are not subject to registration or documentation. They should be.
- Some registration documents are submitted electronically, others by mail or by hand, which convolutes submission dates. To improve consistency and transparency, all filings should be submitted digitally to an online database and immediately available to the public.
- No special filings are required when lobbyists make potentially suspicious political donations—even, for example, when they have met with politicians about their clients’ interests on the same day. This practice must end.
- Only 12 to 15 compliance inspections take place each year. Resources must be made available to enable frequent, detailed inspections.
- FARA’s criminal burden of proof makes it almost impossible to successfully prosecute cases of non-compliance. These should be replaced with civil measures which enable feasible and proportionate enforcement.
There have been legislative efforts to address these issues. In 2008, the Closing the Foreign Lobbying Loophole Act was introduced in the Senate, and would have required lobbyists to register under FARA even if already registered under LDA. It was referred to the Senate Foreign Relations Committee but seems to have died there.
These FARA failings are easy enough to fix, and would make the U.S. Government more accountable to the American people. All that’s needed is the political will.
Natalie Duffy is a Research Associate at Hudson Institute’s Kleptocracy Initiative. Victoria Korovatykh is a researcher and graphic designer.