Reforming Foreign Agents

KleptoCast 7: Casey Michel talks to Craig Holman, Government Affairs Lobbyist for Public Citizen, about how the U.S. can reinforce FARA – and why it matters more than ever.

 

By Casey Michel

In the eight decades since its inception, the United State’s Foreign Agents Registration Act (FARA) remains, by and large, among the most well-crafted pieces of regulation surrounding those pushing foreign interests in the West. Indeed, in comparison to the current set-up in the European Union, FARA stands apart: In a 2015 report on the EU’s domestic oversight, Corporate Europe Observatory wrote that “we know far more about the governments contracting lobbyists in Washington than we do about those in Brussels.”

However, as with most pieces of legislation crafted nearly a century ago, FARA has begun showing its wear. Loopholes have developed, and swelled. Legislators, wittingly or otherwise, have watered down FARA’s original intent, and pared back its punishments. All the while, FARA’s enforcement mechanisms have become laughable. As Jahad Atieh wrote in the University of Pennsylvania Journal of International Law, “FARA is essentially self-policed” – acting, in essence, as an honor system among those who’d further the interests of foreign governments, and foreign autocracies. As such, with FARA approaching its ninth decade on the books – and as foreign actors show every sign of expanding influence within Washington, as the recent report from the Director of National Intelligence’s office detailed – the Act is facing an uphill battle for relevance and impact alike, with the necessity of reform growing by the day.

Poison Ivy and Propaganda Investigations

In order to assess how, and why, FARA should tighten its writ in Washington, it’s worth dialing back to detail the legislation’s original stakes – and its first brush with Ivy Lee. As it is, there are few individuals more pivotal to the history of public relations management – or to the history of whitewashing foreign dictatorships for American audiences – than Lee. Tabbed by investigative journalist Ken Silverstein as the “father of modern public relations,” Lee’s first claim to notoriety stemmed from helping John D. Rockefeller, Jr., salvage his image following 1914’s Ludlow Massacre, in which the Colorado National Guard slaughtered dozens of striking miners, along with numerous women and children, who’d worked for Rockefeller’s Colorado Fuel & Iron Company.

Spreading rumors that certain victims had died from an overturned stove, rather than at the hands of the Guard, Lee laid the groundwork for future, and even more nefarious, clients. In the mid-1930s, Lee was enlisted by the Nazi government to improve Berlin’s image in Washington. As detailed in Silverstein’s Turkmeniscam, Lee, nominally representing the German Dye Trust and taking $25,000 per annum from Adolf Hitler’s government, engineered a program of persuading American newspaper and radio reporters that the Third Reich was central to “preventing for all time the return of the Communist peril.” The campaign from Lee – who was derided by Upton Sinclair as “Poison Ivy” – was brazenly transparent; Time Magazine, memorably ridiculing Lee’s appearance in front of a Congressional committee, wrote that “the committee got the impression that Mr. Lee might just as well have been retained by the Reichskanzler himself.”

Lee’s work at the behest of Berlin, however, bequeathed an altogether different result than he had anticipated. In 1938, Congress passed the first iteration of FARA. The Act required, and continues to require, certain actors working at the behest of foreign states to register their work with the federal government, as well as disclose such ties during Congressional testimony. According to Atieh, the Act was “not designed to substantively censor or restrict foreign propaganda; rather, it was designed to deter its use and adoption through mandatory disclosure requirements and fear of criminal punishment.” Later amendments shifted and broadened FARA’s focus, including a 1942 amendment placing FARA under the jurisdiction of the Department of Justice and a 1966 amendment redirecting FARA from combating propaganda to centering more fully on lobbying outright.

Forcing those lobbying on behalf of foreign governments to register, American officials believed, would allow constituents and legislators alike that much more transparency in Washington. Further – and perhaps more quaintly – federal officials apparently believed that such registration would offer sufficient humiliation to those acting on behalf of foreign dictatorships. As Silverstein wrote, “The idea seems to be that with the need for disclosure, lobbyists would find it too embarrassing to take on clients that were hideously immoral or corrupt, no matter how much money they were offered.” But as the past few decades have illustrated, “That assumption proved to be naïve.”

Failures of Follow-Through

Not only is there little evidence lobbyists were dissuaded from working at the behest of the most notorious governments extant – including regimes in North Korea, Azerbaijan, Turkmenistan, and Sudan, as FARA’s online database shows – there is even less evidence that the Department of Justice, despite FARA’s writ, is especially interested in enforcing the act. As Harper’s found in 2007, “The U.S. General Accounting Office estimated in 1990 that less than half of foreign lobbyists who should register under FARA actually do so, and there is no evidence that matters have improved.” Indeed, in the decade following the Harper’s expose, there’s little reason to think matters have improved, especially as FARA continues to rely on a self-reporting mechanism.

And as the Kleptocracy Initiative recently reported, loopholes continue to abound within FARA. Not only does FARA only see, at most, 15 compliance inspections every year – an indication of the Department of Justice’s lack of resource allocation, as much as anything – but lobbyists don’t need to report any political donations that appear related to their clients’ interests. Moreover, “FARA’s criminal burden of proof makes it almost impossible to successfully prosecute cases of non-compliance.” Or as the Project on Government Oversight concluded in 2014, FARA “seems to have loopholes that make enforcement difficult if not impossible.”

Perhaps most disconcertingly, as the Sunlight Foundation wrote last August, the “Department of Justice lacks authority to inspect the records of those whom they believe should be registered, but haven’t.” All told, from 2005-2015, the Department of Justice charged a total of only four criminal cases relating to FARA, including individuals pushing interests from governments in Zimbabwe, Iraq, and Pakistan.

Given the expansive areas for improvement – from easing electronic filing to listing meetings abroad between American officials and those pushing foreign interests – it’s something of a surprise that so many individuals and organizations continue to register with FARA: As of early January, nearly 400 individuals and organizations were listed as active registrants in FARA’s database. That, however, may be changing, especially as a new administration enters Washington with an attendant Congress displaying a concerted interest in clamping down on ethics oversight. In but one example, a recent spike in sparkling op-eds praising Kazakhstan have appeared in the American press – even though, for the first time since 1992, not a single Central Asian government is registered with any current representation in FARA.

Despite these glaring holes, FARA remains, both in intent and in practice, one of the foremost means for exposing foreign influence in domestic developments. (There’s a reason that the Kremlin-funded RT outlet went to notable lengths to avoid registration with FARA, as the U.S. DNI’s recent report detailed.) A few overdue updates would make FARA that much more pertinent, and that much more powerful. After all, autocracies, especially of the post-Soviet variant, aren’t disappearing anytime soon. Nor, then, should the pressure to reform one of the United State’s best tools for combating foreign influence in Washington’s domestic affairs.

Casey Michel has worked as a journalist and researcher in both the United States and former Soviet Union.