The Foreign Agents Registration Act (FARA) was enacted in 1938, just before the beginning of the Second World War. Policymakers passed the law in an attempt to deal with the perceived threat of foreign agents operating in the United States. Specifically, it was feared that pro-Nazi agents could spread propaganda inside the U.S. without any requirement that they make their employment status public. The Supreme Court clarified in the decision Vierick v. United States that “the general purpose of the legislation was to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment.” The law requires that both foreign agents and foreign principals (usually the nation the agent is associated with) register with the United States Department of Justice. Registration requires the submission of biographic information, clarification of the nature of the agent’s work in the United States, and some financial accounting. Since passage, the act has been amended significantly. What follows is a brief history of the law and its application.
When first passed, the law was primarily meant to apply to subversive political agents who used propaganda to sway government opinion. According to the United States Attorneys’ Manual, the law was used to prosecute 23 cases during the World War II era. The unit was moved in 1942 from the Department of State to the Department of Justice. The law was amended and the office began its practice of sending out warning letters to individuals who might be obligated to register under the law. Also, some loopholes in the law were closed up by the expansion of the terms “foreign principal” and “foreign agent”.
In 1950, a few minor amendments were enacted. The act was modified to clarify when the statute of limitations would begin running and close a loophole that allowed dissolution of an offending organization to prevent criminal prosecution of its members.
In 1966, lobbying by sugar producers hoping to secure a share of mandated sugar quotas (following the ban on trade with Cuba) prompted a demand for reform. The law was amended to focus on agents working “for or on behalf of” a foreign principal, as opposed to merely those who engaged in subversive activities. According to a House Report, it was expanded “to cover a broader range of foreign activities and interests. The focus of the act was shifted from the regulation of subversive political activities to the disclosure of lobbying on behalf of foreign business and government interests.”
As of 1966, the law retained two key loopholes that enabled some foreign agents to not register. First, the so called “lawyer’s exemption” meant that attorneys who provided representation to foreign principals did not technically have to register. The Department of Justice clarified that this exemption ought to be limited in scope, but not clearly enough to prevent many attorneys from failing to register on the assumption that they were exempt from the law. Second, the “domestic subsidiary exemption” exempted foreign agents who represented a company with “substantial operations in the United States”. This exemption also helped many lobbyists not register with the Department of Justice.
Criminal prosecution in this period significantly decreased, while, according to the United States Attorneys’ manual, “civil and administrative resolution of FARA questions” dramatically increased. This happened for two key reasons. First, the effect of changing the focus of the law to agents who worked “for or on behalf of” a foreign principal increased the burden of proof; prosecutors had to demonstrate that the agent had actually worked on behalf of a foreign principal. Second, the 1966 amendments gave administrators a civil injunctive remedy which was used much more frequently than criminal procedures.
The law was radically changed after the passage of the Lobbying Disclosure Act of 1995 and the Lobbying Disclosure Technical Amendments Act of 1998. First, the law was narrowed to lobbyists who dealt with political interests (as opposed to economic interests). In practice, this simply meant that lobbyists with foreign economic interests had to register under the Lobbying Disclosure Act rather than under FARA. Second, the 1995 and 1998 laws communicated more clearly the scope of the “lawyer’s exemption,” helping to restrict its use. Lastly, Congress struck the term “political propaganda” throughout the text of the law and replaced it with the term “information materials.”
Despite the many amendments, FARA has, at best, been selectively enforced since it was passed. The Foreign Agent Registration Unit, who oversees enforcement, has never had sufficient authority to do its job. Many continue to fail to register who should do so, and even those who register often fail to do so on time. As of 2008, a Government Accountability Office report recommended “(1) granting the Department of Justice civil investigative demand authority to inspect the records of persons Justice believes should be registered as agents of foreign principals and (2) requiring persons claiming certain exemptions to provide advance written notification to Justice before engaging in the exempt activities.” Such authority might augment the Foreign Agent Registration Unit’s ability to carry out its duties.