Awakening the beast: US non-profits eye FARA legislation with concern


Andrew Milner


A long-dormant piece of US legislation is threatening cross-border giving and causing anxiety in the non-profit sector. The Foreign Agents Registration Act (FARA) was originally enacted in 1938 to counter the possible effects of Nazi propaganda on the American public. Subsequently, it fell into disuse but, last year was invoked in the prosecution of Paul Manafort, President Donald Trump’s former campaign manager.

Last Autumn, TV station RT America and news outlet, Sputnik, both Russian-funded but with production companies in the US, registered as ‘foreign agents’ under pressure from the Justice Department. Since last year, five bills have been introduced in Congress by members of both parties to increase FARA enforcement.

Why is this flurry of activity causing concern? FARA requires organisations and individuals engaged in lobbying or public discourse in the US on behalf of ‘foreign principals’ to register with the Department of Justice disclose their funding and list the scope of their activities.

While it does not prohibit such funding or activities, FARA is so loosely drafted – what constitutes a foreign agent is vague, as are the terms on which groups may be exempt from registration – that it could require registration for a number of entities among whom, says law firm Covington & Burling LLP, are ‘nonprofit advocacy groups [and] charitable organizations’.

Another concern is that there are few precedents to guide its enforcement because the law has lain dormant so long. An article by Doug Rutzen and Nick Robinson of International Center for Not-for-Profit Law (ICNL) sketches out some possible scenarios. Among them, ‘a US nonprofit would arguably need to register for doing something as innocuous as holding a public meeting in Chicago at the request of a Canadian organization to discuss policies to address the opioid epidemic… because it is acting at the “request” of a “foreign principal” to engage in a “political activity”.’

There is no suggestion at present that the law will be used to discriminate against nonprofits whose activities the government disapproves of but the consequences may be quite bad enough, warn Rutzen and Robinson. Registration is intrusive and there are criminal penalties for non-compliance. Even larger non-profits may wish to avoid the stigma associated with the label ‘foreign agent’ in an increasingly insular climate of opinion. The upshot, fear Rutzen and Robinson, is that ‘many organizations will simply stop engaging in beneficial cross-border activities’. To counter this, while maintaining the principles of FARA, ICNL and other groups propose fixing the definition of ‘foreign agent’ as follows: ‘a government of a foreign country and a foreign political party, or foreign persons or entities acting on their behalf’.  This, says ICNL, addresses the problem of ‘catching inadvertent “foreign agents,” while still covering foreign governments and political parties, as well as cases where foreign governments or political parties use intermediaries to obscure their direction or control.’

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Andrew Milner is associate editor of Alliance magazine

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