In the next few months, the Justice Department’s Inspector General will release a report on lobbying by foreign powers aimed at the federal government. Unlikely lobbying by American citizens and companies, tracked by the House of Representatives and Senate, lobbying by agents of foreign powers is monitored by the Department of Justice.
The law requiring reporting by foreign lobbyists — known as the Foreign Agents Registration Act, or FARA — originated in the 1930s and grew out of the concern that it’s important to know when foreign governments are trying to influence U.S. policy. It differers from domestic lobbying reporting in three important ways.
First, FARA requires significantly more detailed reporting than domestic lobbying. FARA requires lobbyists to list meetings with members of Congress and describe the issues discussed, provide copies of their communications, and report their activities in a timely manner, often within 48 hours. By comparison, domestic lobbyists do not report individual meetings or provide copies of communications, and report on a quarterly basis.
Second, FARA reporting is administered by the Department of Justice, but the Lobbying Disclosure Act, or LDA, which covers lobbyists for domestic interests, is adminstered by the House of Representatives and Senate.
Finally, the FARA system is a hybrid electronic and paper system, where the agency accepts PDFs and releases information in formats that cannot be processed by computers. By comparison, the LDA is a digital system, where domestic lobbyists to report in a structured data format and releases information in a format that is processable by computers. This makes it much easier to track and analyze domestic lobbying information than foreign lobbying information.
Congress required the Justice Department IG to look into FARA in its FY 2015 Commerce, Science, and Justice Appropriations bill. Specifically, the Congress required the IG to audit “the administration and enforcement of” FARA with the following objectives:
- the trends in the numbers and types of registrations;
- the timeliness and sufficiency of the information provided by registrants;
- the monitoring and enforcement actions taken by DOJ to ensure appropriate registration; and
- areas for administrative or legislative improvements.
Civil Society Databases
Because of the difficulty in using the foreign lobbying information released under FARA, two organizations undertook efforts to put it into a useful format. The Sunlight Foundation built an online tool, the Foreign Influence Explorer, that has historic data between 2008 and 2013 and some current information, although the level of detail varies. The Project on Government Oversight built the Foreign Influence Database, containing information filed between 2009 and 2012.
Both organizations have issued reports with recommendations on how FARA should be fixed. Sunlight’s report focuses on how the DOJ should fix the FARA website, which is broken in many different ways, and also release the data in a structured format. POGO’s report, Lobbying, Filings Failures, and Lax Enforcement, does a deep dive into the lobbying data and highlights the major failings of FARA and how it is enforced, with recommendations on how the underlying law should be changed.
Unmet DOJ Commitment to Modernize FARA
In addition, a group of organizations urged the Obama Administration to modernize FARA as part of its open government planning process, focusing on releasing the information in formats usable by computers. The Justice Department went so far as to partially adopt our recommendation in its 2014 Open Government Plan 3.0, but more than 2 years later the DOJ still has not delivered. Here is what the DOJ said it would do.
As we described in the last version of our Open Government Plan, the National Security Division’s Counterespionage Section has a dedicated FARA Unit, responsible for administering and enforcing the FARA. FARA requires persons acting as agents of foreign principals in a political or quasi-political capacity to publicly disclose their relationship with their foreign principals, their activities for their principals, and receipts and documents from those activities.
In April 2011, the Department introduced an improved online FARA portal, FARA eFile. In the process of implementing the Open Government Plan, the FARA Registration Unit, in conjunction with the National Security Division Information Technology Section, has begun to assess the feasibility of generating additional features to the current online portal, which will enable the public to search, sort, and print information from the database more easily. Over the next two years, the Department will continue to review the FARA website and electronic filing system, while soliciting reasonable and concrete suggestions and feedback from the public, and will work to make feasible and appropriate modifications to the database. Throughout this process, the Department will specifically investigate collecting and publishing registration information as structured data in a machine-readable format.
Civil Society Recommendations
In light of the ongoing IG investigation, we once again making the following recommendations on modernizing FARA, broken into two categories: (1) strengthening oversight and (2) addressing data quality and usefulness. The oversight section focuses on legislative changes, while the data quality section focuses on administrative changes that could be made immediately.
(1) Conduct regular independent review of FARA Unit operations. By comparison, the GAO regularly audits compliance under LDA.
(2) Allow for civil penalties as an intermediate step to punish those who did not file. (A step between administrative letters and criminal fines.)
(3) Provide for random audits.
(4) Look at possible loopholes in the FARA statute. For example:
- Clarify the circumstances when lobbyists must register under LDA vs FARA (beyond that required under House guidance). Consider setting FARA as default system under which lobbyists must register if they are foreign company, association, partnership, or individual.
- Address § 613(f), which can exempt lobbyists from registering if they meet the following criteria: 1) They represent the “government of a foreign country the defense of which the President deems vital to the defense of the United States”; 2) They are promoting policies that are not intended to conflict with any existing U.S. domestic or foreign policies; and 3) Communications they distribute are “believed” by them “to be truthful and accurate.”
- Consider whether registrants shoulld be required to file information materials even if it is distributed to only one person, changing the current standard from distribution to two or more people.
ADDRESSING DATA QUALITY AND USEFULNESS
(1) Everyone should be required to use online forms to submit/file, unless they can show a hardship. In addition, address how to represent the supplemental documents in a way that protects privacy.
(2) The data should be structured upon receipt and available for download in bulk. (The current bulk download, such as it is, isn’t working properly.)
(3) Wherever possible use unique identifiers to represent data, and wherever possible draw the identifiers from unique IDs used by other government entities or create crosswalks. For example:
- Donations to campaign committees should use the FEC identifier on supplemental question 15(c) and short form question 15;
- Specific contacts with members of Congress should use the congressional bioguide IDs (often found in the supplemental, usually as an attached document, see e.g. https://www.fara.gov/docs/3492-Supplemental-Statement-20160129-25.pdf) or a common ID for the committees;
- Bills should use a common format;
- Staff who are also registered under the LDA should be required to include their LDA ID number.
(4) Incorporate a change log for data, for when information (data) is changed on the website/ download.
(5) Add a termination form, for when a registrant no longer represents a foreign entity.
(6) Require filers to clearly state the original recipients of the documents and the original date of distribution.
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We are keeping an eye on the latest FARA policy developments on this wiki page.
— Written by Daniel Schuman