Before his resignation on Friday, news stories and questions have swirled about Donald Trump’s former campaign manager Paul Manafort and his involvement with pro-Russian politicians in Ukraine. What was his role? Was he paid? Who does he have ties to? Was he disclosing what he needed to under U.S. law?
Given the renewed attention to the role influence from foreign governments has allegedly had on this year’s presidential election cycle, you may have heard pundits talk about FARA, or the Foreign Agents Registration Act. There’s likely to be more debate in the coming weeks about who should have and who did register with FARA.
So, what the heck is FARA?! Glad you asked.
In 1938, Congress passed the Foreign Agents Registration Act, which requires those working on behalf of a foreign government or a quasi-government agency to disclose information about their activities. Congress passed the act as a response to the Nazi propaganda that was entering the United States during World War II, and was supposed to give members of Congress and the American people more knowledge about foreign interests trying to influence U.S. politics.
A lot of people compare it to lobbying disclosure, but that may not be an “apples to apples” comparison as it includes many other “influence” activities, like public relations and tourism. Congress believed that if you were a foreign actor in the U.S., your disclosure should be deeper and broader; this was not just a lobbying disclosure act, but a counter-espionage provision of the law meant to provide transparency to areas of potential foreign influence.
FARA requires that someone register with the Department of Justice within 10 days of agreeing to be an agent. Then that individual must file reports every six months detailing their activities.
Some of the things they have to disclose:
- The name of the foreign government
- Whom they have contacted, including government officials, members of Congress, their staff and also members of the media
- What issues they discussed
- How much money they received for that activity
- Copies of any informational items (formerly called propaganda) distributed; this can include posters, press releases, ads, op-eds and more
- Any campaign contributions made by the registered individual
Some of unique parts of FARA compared to the Lobbying Disclosure Act:
- There is no monetary threshold to FARA, so an agent must register even if that person isn’t paid at all
- FARA office collects fees for registering
- FARA makes reports to Congress every six months
- The FARA office can make on-site inspections of records of those registered under the act
While we can glean a lot of information from these reports, it’s important to know there are several categories of people exempted as well. Those include:
- Diplomats and officials of foreign governments and their staffs (if recognized by the State Department)
- Activities purely commercial in nature
- Activities that are related to religious, scholastic, academic, scientific or the fine arts
- Sometimes collecting funds used for medical aid, food or clothing to relieve human suffering
- Lawyers representing foreign principals in court so long as they are not influencing policy
- Agents registered under the Lobbying Disclosure Act
Second, the documents are only as good as the integrity of the person filling them out. Sometimes those are handwritten or incomplete. Sometimes people don’t register at all.
The Department of Justice provides the filings online, but they are in PDF format and thus are not easy to sort or search. That’s why from 2008 to 2013, the Sunlight Foundation undertook a project designed to make those easier to access. Though you can see archived information online — like a feed of arm sales and new registrants — there is still a lot of information that’s only available physically at the office, primarily the informational items. Sunlight would love to see this information stored in a machine readable format and available to users online.
The Department of Justice has several avenues of enforcement. The statute has both civil and criminal prosecution avenues. When the FARA Unit discovers potential violations of the act, it first sends a letter of inquiry to the individual seeking more information. But, the Department of Justice lacks authority to inspect the records of those whom they believe should be registered, but haven’t. They only have the authority to perform site inspections if the person has already registered under the law.
A 2008 Government Accountability Office report pointed out that congressional action was needed to give the Justice Department this authority. The agency also pointed this out in a 2015 reply to an inquiry by Sen. Grassley, R-Iowa, regarding enforcement of FARA. Grassley’s office made the inquiry following news stories questioning the activities of Clinton ally Sidney Blumenthal.
The agency expressed interest in working with Congress to change the part of the law restricting them from inspecting the records of those who had not registered under FARA. Sunlight supports this change, but so far, that has not happened. (There are a number of additional ways that FARA can be improved, such as making forms electronically filed in a searchable, sortable online database. Check out Sunlight’s full list of FARA recommendations here.)
But we did get an idea of what the Justice Department has done in terms of enforcement of the law. One of the challenges of FARA is that the Justice Department has to show “willful” violation of the law. It can sometimes be hard to prove that someone intentionally broke the law; individuals can claim they weren’t aware of FARA rules in the first place.
When responding to Grassley last year, the Justice Department reported that in the past 10 years:
- It has sent 130 letters of inquiry
- Of those letters sent, the department found 38 had obligation to registered under FARA
- The FARA Unit has conducted 101 inspections since 2005
- FARA has charged four criminal cases
The most recent criminal prosecution happened in 2014. Prince Asiel Ben Israel received a seven month prison sentence after he pleaded guilty to not reporting his activity while trying to persuade U.S. government officials to lift sanctions on Zimbabwean government officials.
The Justice Department’s FARA office also told Grassley that the agency finds leads for investigations by reading reports in media outlets — as is the case with Manafort’s involvement in Ukraine. We reached out to the Justice Department to ask if it is investigating the situation involving Manafort. Spokesman Marc Raimondi told us by email, “While we would never discuss a specific case beyond what is available on the public FARA website, in general FARA does not authorize the government to inspect records of those not registered under the Act.”
In response to our questions, Raimondi also told us, “The Department is considering legislation that would remedy the government’s current inability to compel the production of records from potential and current registrants.”
But there may be more clarity on FARA’s future soon. As Demand Progress’ Daniel Schuman pointed out, a report from the Justice Department’s inspector general due to come out in the next couple months will examine “the administration and enforcement of” FARA in depth. This report could potentially bring about positive changes in the law regarding data quality, oversight capabilities and more.
Regardless of Manafort’s situation and the law’s potential limitations, FARA is a key tool for monitoring the ways foreign entities influence policy and opinions in the United States. If you’d like to dig into FARA data yourself, check out Sunlight’s Foreign Influence Explorer. And for even more ways to explore FARA, check out the excellent Foreign Influence Database from our allies at the Project on Government Oversight!