The Retroactive Foreign Agents Registration Act, a new, bipartisan bill introduced this week in both the US House of Representatives and the Senate, would amend the Foreign Agents Registration Act ("FARA") to clarify that the agent of a foreign principal remains obligated to register for their activity, even after the agency relationship ends, if otherwise required by FARA. The bill comes against a backdrop of increasing FARA enforcement activity and is a direct response to a recent district court decision. If enacted, this would be the first statutory amendment to FARA in 25 years.
Key Aspects of FARA
With certain exemptions, FARA requires agents of foreign principals to register with the US Department of Justice ("DOJ") for conducting specified activities within the United States, including "political activities," acting as a public relations counsel or political consultant, or representing a foreign principal before federal agencies. Registered agents must provide regular reports to the DOJ, detailing the activities they conduct on behalf of foreign principals and the compensation received from each foreign principal—which are more demanding requirements than those of the Lobbying Disclosure Act.
The text of FARA specifies that termination of the agency relationship "shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal," 1 and, at least until recently, DOJ relied on that provision in seeking to compel post hoc registration.
Retroactive Foreign Agents Registration Act
The bill would amend the statute to state that termination of an agency relationship shall not relieve an agent from the requirement to file a registration statement "covering the period" during which they acted as a foreign agent. The bill would also make more explicit that DOJ has the authority to seek a court order to enforce the Act (e.g., compelling a foreign agent to register), even if "the person does not act as the agent of a foreign principal at the time the court issues the order." Finally, the bill would apply these statutory changes to conduct both before and after its enactment.
The bill is a direct response to a recent decision by the US District Court for the District of Columbia (which DOJ is appealing). In October 2022, that court granted the dismissal of a civil lawsuit by DOJ seeking to compel the registration of an alleged foreign agent whose agency relationship with a foreign principal had ended. In that case, Judge James Boasberg held (with palpable reluctance) that he was bound to do so by a D.C. Circuit decision from 1987 that defined how the statute of limitations runs for purposes of criminal FARA prosecutions. 2
Many observers interpreted the ruling to severely limit DOJ's ability to seek civil injunctions to enforce the law, since unregistered agents would appear to be able to avoid being required to register by terminating the relationship with a foreign principal (though they could be vulnerable to criminal prosecution for failing to register before that point).
In his decision, Judge Boasberg called for the precise legislative fix provided by the Retroactive Foreign Agents Registration Act, noting that such a change would provide clarification that "although registration as an agent is retroactively required even after the termination of an agency relationship, the registration statements that a former agent needed to file would have to report information only from those prior periods during which he was acting on behalf of a foreign principal, as opposed to indefinitely into the future." 3
Political Outlook
The Retroactive Foreign Agents Registration Act appears to have significant bipartisan support across a broad ideological spectrum in both the House and Senate, which could improve its prospects for passage and eventual enactment. In the House, the bill's initial cosponsors include a group of Members from across the political spectrum, including: Reps. Mike Gallagher (R-WI), Raja Krishnamoorthi (D-IL), Chip Roy (R-TX), Jamie Raskin (D-MD), Rob Wittman (R-VA), Seth Moulton (D-MA), Jim Banks (R-IN), Mikie Sherrill (D-NJ), Dusty Johnson (R-SD), Abigail Spanberger (D-VA), and Shontel Brown (D-OH). In the Senate, the bill was introduced by Sens. Chuck Grassley (R-IA), Gary Peters (D-MI), Marco Rubio (R-FL), Todd Young (R-IN) and Elizabeth Warren (D-MA).
Moreover, the bill's narrow focus, in direct response to a recent court decision, could also enhance its prospects for passage, since proponents will argue that it will simply restore the law to what many believed it to be. Of course, Congress has tried unsuccessfully to pass FARA reform in the past and it may be challenging for this Congress, to pass anything—even narrow, bipartisan and bicameral bills—this year. Nonetheless, this bill may represent the best shot at FARA reform in many years, which is why those with an interest in FARA should pay close attention to any congressional activity surrounding this bill.
Footnotes
2 United States v. McGoff, 831 F.2d 1071, 1082 (D.C. Cir. 1987) ("From the manner in which FARA defines the status of an agency relationship and mandates the content of statements (and supplements) which foreign agents must file, it appears that the statutory obligation to file expires when the agent ceases activities on behalf of the foreign principal.").
3 Att'y Gen. v. Wynn, No. CV 22-1372 (JEB), 2022 WL 7002845, at *5 (D.D.C. Oct. 12, 2022)
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