FARA Is a Catchall Statute—and That’s a Problem

At the beginning of January, the Justice Department proposed to materially revise the regulations of the Foreign Agents Registration Act (FARA) for the first time in almost 30 years. This capped an eventful year for FARA—a once-obscure law that has become both central to the United States’s efforts to combat foreign influence as well as increasingly feared as a tool that can be used by those in power to target politically disfavored voices within the country. 

FARA appeared in the headlines throughout 2024. In May, Rep. Henry Cuellar (D-Texas) was charged by the Justice Department with taking bribes and acting as a foreign agent of Azerbaijan. In August, Sen. Robert Menendez (D-N.J.) was convicted of bribery and acting as a foreign agent of Egypt. And in September, the Justice Department brought charges against two employees of RT for conspiring to violate FARA by covertly financing right-wing media influencers to spread Kremlin talking points in the run-up to the U.S. presidential election. 

Members of Congress also pushed forward their views on how FARA should be enforced. The 118th Congress saw a significant spike in congressional investigations against nonprofits, particularly by House Republicans. One of the most frequent justifications for investigations was that an organization should have registered under FARA. Common targets included prominent U.S. environmental organizations, groups advocating for Palestinian rights, and human rights nonprofits. 

These congressional investigations caught the attention of many in civil society given FARA’s expansive scope. Indeed, while the Justice Department has largely used its discretion to focus FARA enforcement actions in limited areas, such as foreign government lobbying, the department has not shied away from affirming the act applies in other contexts. In one illustrative example, the department required a U.S. church to register under FARA for printing out signs at the request of European congregants coming to Washington, D.C., for a March for Life rally. 

When the Justice Department announced it was planning new FARA regulations in 2021, a number of civil liberties organizations raised concerns that a wide range of common and constitutionally protected activities appear to be covered under the act. For example, organizations noted that the act is worded so broadly that a Catholic bishop would seemingly have to register to deliver a message to his U.S. congregation on behalf of the pope that the death penalty is immoral. As would U.S. soldiers who contacted their members of Congress at the request of those they worked with in Afghanistan to help get them to safety in the United States. 

An open letter signed by the American Civil Liberties Union, Americans for Prosperity, the Natural Resources Defense Council, the Institute for Free Speech, and other prominent nonprofits—including the International Center for Not-for-Profit Law (where I work)—warned that “FARA’s overbreadth and vagueness can undermine and chill First Amendment rights to speech and association and the statute has a history of being used to target undesirable expressive conduct.”

In its new proposed regulations, the Justice Department seemed to largely ignore these civil liberties concerns. The proposal declined to clarify key terms in the act and limited important exemptions (more on this later), increasing the department’s discretion to enforce—or not enforce—FARA against those they choose. 

This underlines perhaps the fundamental problem with FARA— the act serves as a type of a catchall statute. Advocates of such a sweeping law might argue that it provides the Justice Department the discretion it needs to prioritize enforcement in certain areas, like foreign government lobbying, where it is seemingly most needed. However, as the Justice Department has increased FARA enforcement and the U.S. has become more politically polarized, the act functions increasingly like a sword of Damocles hanging over broad sections of U.S. civil society, the business community, and the country’s political class, with no one being quite sure if—or when—it might drop on them. 

It is unclear if the incoming Trump administration will adopt these proposed FARA regulations. Paul Manafort, Michael Flynn, Elliott Broidy, and others in Trump’s orbit have had significant FARA legal troubles. Trump’s nominee for attorney general, Pam Bondi, was also a registered foreign agent for lobbying work for the Qatari government—an experience that might shape her own take on the law. Still, it is possible that the Trump administration will adopt some version of these regulations. Regardless, the proposal represents a concerning snapshot of the expansive manner in which the Justice Department currently views FARA, highlighting the need for more comprehensive reform of the act. 

An Obscure Act That Rediscovered the Limelight

FARA’s sweeping breadth is no accident. FARA was enacted in 1938 and then significantly expanded in 1942 during the heart of World War II to combat fascist propaganda. While often labeled merely a transparency statute, from the very beginning it was intended to have a politically silencing effect. During the war, the Justice Department used FARA investigations, prosecutions, and the stigma and administrative burden of registering to shut down Nazi propaganda in the U.S. 

In the McCarthy era, the Justice Department famously prosecuted the civil rights icon W.E.B. Du Bois under FARA for failing to register for circulating an anti-nuclear petition in the U.S. at the request of a French nonprofit. Du Bois was eventually acquitted by a jury, but his reputation never recovered in his lifetime. As the historian Brett Gary has written, during this first period of its heightened enforcement, “FARA gave the Justice Department an effective and low-profile means for eliminating unwanted political ideas from the U.S. scene without drawing critical attention to its work.” 

After the McCarthy era, FARA fell out of favor as an anti-propaganda tool, and in the 1960s enforcement began to refocus on lobbyists for foreign governments—although commentators frequently noted it was underutilized even for this more limited goal. 

However, since the 2016 U.S. presidential election, and new fears about Russian and Chinese influence, the statute has seen a surge in enforcement in a number of areas, including against lobbyists of foreign governments; media of proclaimed adversaries like Russia and China; “malign” influence campaigns; and, more recently, foreign corruption of U.S. public officials. It has also caught up less consequential actors—for example, until these recent regulations signaled otherwise, one of the main sets of entities who registered were companies promoting tourism to foreign countries on behalf of a foreign government. This surge in enforcement raises new questions about how and against whom the notoriously broad act will be used. 

An Overbroad Law Made Broader by the Justice Department

FARA requires an “agent of a foreign principal” engaged in covered activity (explained below) to register with the Justice Department in a publicly available database and to label covered materials. Those who willfully violate the act can face up to five years in prison.

This registration scheme, however, covers far more activity than many realize. Under the act, a foreign principal includes not just a foreign government, but any foreign person, foreign organization, company, nonprofit, or even a U.S. citizen domiciled abroad. In other words—as strange as it may sound—the government of Saudi Arabia and one’s grandmother in Canada are equally a “foreign principal” under FARA. 

One qualifies as an agent under the act if one engages in a covered activity at the “direction” or “control” of a foreign principal, or even at their “request.” Those engaged in a covered activity who are financed by a foreign principal “in major part” can also qualify as agents. Neither “request” or “in major part” is defined, despite their ambiguity. 

The Justice Department had initially indicated it was considering new regulations to clarify FARA’s definition of an agent, but its recently released regulatory proposal declined to do so, finding that determining who is an agent under the act “is a fact-intensive exercise better suited to the advisory-opinion process.” Under this process, potential registrants write to the department asking for an advisory opinion about whether an activity requires registration. Redacted versions of these opinions are then made publicly available. Yet these opinions often only create more confusion. For example, one recent opinion found that a potential registrant was an agent under the act because they had acted in “coordination” with a foreign principal. However, the word “coordination” appears nowhere in FARA and suggests that Americans who are merely in communication with foreigners pursuing a shared political goal—such as combating climate change or fighting against sex trafficking—are subject to FARA.

Under FARA, there are seven covered activities that can trigger registration. The most well known is “political activities.” This includes not just lobbying or electioneering, but any activity that the person engaging in it believes will influence “any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States.” As such, “political activities” could include a nonprofit’s public advocacy or a journalist’s news article. 

Other covered activities in FARA are arguably even more far-reaching. For example, one must register if one acts as a “political consultant” for a foreign principal, which is defined to include “any person who engages in informing or advising any other person with reference to the domestic or foreign policies of the United States.” Under this broad definition, it is arguably a registrable activity if, during a phone conversation with a friend in France, you respond to her “request” to tell her your views on U.S. trade policy. Despite earlier indications that it might narrow their interpretation of this definition, the Justice Department declined to do so in its proposed regulations, arguing “political consultant” should be read as a distinct registrable activity. 

FARA’s Shrinking Exemptions

There are important exemptions to registering under FARA, and this is where the Justice Department’s proposed regulations would arguably have the most impact, as they narrowly interpret two of the most significant exemptions. 

Under FARA one does not have to register if engaging only “in private and nonpolitical activities in furtherance of ... bona fide trade or commerce.” Without this so-called commercial exemption, almost all transnational commerce could be registrable, as one of FARA’s covered activities includes “collect[ing]” or “disburs[ing]” “things of value” on behalf of a foreign principal (there is no requirement that these transactions be connected with political activities). In its proposed regulations, the Justice Department expanded its current regulatory prohibition on foreign government-owned companies invoking the commercial exemption if their activities promote the interests of a foreign government. As a result, more state-owned companies would likely have to register—potentially including companies backed by sovereign wealth funds. For example, there has been recent debate whether Saudi-backed LIV Golf, and those connected with it, should have to register.

However, the proposed regulatory change that has received the greatest attention involves one of the most confusing, contested, and widely used exemptions in the act. The 613(d)(2), or “domestic interest,” exemption in FARA exempts persons from registering who only engage “in other activities not serving predominantly a foreign interest.” Those with a liberal interpretation of this exemption have suggested that if someone in the U.S. engages in an otherwise covered activity, they do not have to register as long as the activity “predominantly” serves their own interest. Consider, for example, a U.S. public health nonprofit organizing a public talk at the “request” of a visiting foreign expert on policies to fight obesity. The nonprofit might argue that they are exempt from registering because they organized the talk to further their own interests, rather than the interests of the foreign expert. 

The Justice Department’s proposed regulations would make clear the domestic interest exemption applies to both commercial and noncommercial actors and create a two-part test for applying it. The first part of the test makes the exemption categorically unavailable if a foreign government or political party influences the activities or is the principal beneficiary; if the intent of the activities is to benefit a foreign government or political party’s political or public interests; or if the actions are undertaken on behalf of an entity directed by a foreign government or political party and promotes their political or public interests (such as a state-owned enterprise). 

If a potential registrant clears the first part of the test, the second part determines if the domestic interest exemption applies to their activities by laying out a “totality of the circumstances” test with a “non-exhaustive” list of factors. These factors are “(1) whether the public and relevant government officials already know about the relationship between the agent and the foreign principal; (2) whether the commercial activities further the commercial interests of a foreign commercial entity more than those of a domestic commercial entity; (3) the degree of influence (including through financing) that foreign sources have over domestic non-commercial entities, such as nonprofits; (4) whether the activities concern U.S. laws and policies applicable to domestic or foreign interests; and (5) the extent to which any foreign principal influences the activities.”

This proposed two-part test, including its “non-exhaustive” set of factors, will likely only further muddy an already murky regulatory environment. For instance, the Justice Department’s advisory opinions are already—understandably—causing confusion for nonprofits in the U.S. that are trying to determine when a donation or grant from a foreigner might trigger registration. These regulations provide no bright-line rules. Instead, they simply give the Justice Department immense discretion over when or when not to allow the exemption. That said, since this proposed test is not derived from the text of the act, it would likely face a challenge under the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, in which the Court significantly limited the judiciary’s previous deference to an agency’s interpretation of legislation. 

A Need for Reform

Whether or not the proposed regulations by the Justice Department are ultimately adopted, FARA will remain an overbroad law that creates both regulatory confusion and serious civil liberties concerns. There is a need to amend and better target FARA, recognizing that it is just one of many tools that can be used to address different types of foreign influence concerns. 

If the goal of FARA is to require the registration of foreign government lobbyists, then FARA should be narrowed to focus on that specific goal—with clear rules that everyone can understand. 

Meanwhile, if policymakers view the act as a way to combat foreign disinformation, then there are likely more effective approaches. After all, FARA’s registration scheme does not provide information about what is true or false or combat domestic sources of disinformation (which arguably have a far greater impact). Under its current wording, FARA can also be weaponized against many media outlets from which Americans receive their news—whether because these outlets are based abroad (like the BBC) or because they have some degree of foreign ownership. Last year the chairman of the House Oversight Committee wrote the Justice Department asking why Al Jazeera and TikTok had not yet registered under FARA, raising the prospect of increased politicization of FARA in relation to the U.S. media ecosystem. 

Or consider FARA’s use to target corruption among public officials. One of the perceived FARA success stories of 2024 was the conviction of Sen. Menendez for both conspiring to violate FARA and violating 18 U.S.C. § 219, which bars U.S. public officials from engaging in FARA registrable activity. Given the egregiousness of Menendez’s actions, this case drew little critical scrutiny—after all, he was convicted of 14 felony charges related to bribery, making the two FARA felony convictions almost beside the point. However, the precedent this case sets is potentially troubling. A public official accepting gold bars from foreigners (or anyone) in exchange for political favors is criminal activity, but most FARA registrable activity is not criminal—indeed, much of it is First Amendment protected. The Justice Department has found that activity as innocuous as printing out a sign at the request of a foreign congregant coming to the U.S. for a rally requires registration under FARA. As such, under 18 U.S.C. § 219, not only could members of Congress face potential jail time for activity that few would suspect could trigger FARA, but so could the over 4 million persons employed by the U.S. government, including members of the U.S. armed forces. This a recipe ripe for politicized abuse, and as Menendez’s conviction shows, there are plenty of other legal tools already available to combat actual corruption. 

For inspiration on how to better target FARA, the U.S. may want to look abroad. In the past several years, many of our democratic allies have enacted foreign influence registration schemes, including the United Kingdom, Canada, and Australia. Their approaches have been far from perfect, but they have been much more targeted. For example, unlike FARA, registration under their schemes is largely triggered only if one acts on behalf of a foreign government or political party, and they have a much narrower set of covered activities. Meanwhile, it is countries like Russia, Nicaragua, and recently Georgia that have adopted more expansive foreign agent registries—often claiming they are merely copying FARA—used to target civil society. 

Ideally, Congress would act to more carefully tailor FARA—an American Bar Association task force on FARA made a number of useful recommended amendments in 2021. However, given years of relative inaction by Congress, it is increasingly likely that the issue of FARA’s overbreadth will find itself in the U.S. courts. Unsurprisingly, there are strong arguments that key provisions of FARA are overbroad, vague, and unduly burdensome, violating protected First Amendment expression. 

In the meantime, nonprofits, media organizations, and others will continue to wonder if and how they may face FARA legal scrutiny—and if the FARA attention they receive may be politicized—chilling constitutionally protected expression. In failing to provide clearer guidance in how it will enforce the act, the Justice Department’s proposed regulations only further fuel these concerns.