We Americans do not like foreign governments meddling in our domestic affairs, but our laws permit some activities if they are disclosed. This is the second of three posts regarding non-governmental (not to be confused with “NGO”) economic and political agents who operate and exert influence on U.S. soil on behalf of foreign governments and quasi-governmental groups. (You can find the first post here.) Often lawyers, lobbyists, and consultants are the types of individuals involved with representing the interests of foreign clients, but those categories are not exclusive. These entities and individuals are considered “foreign agents” under the U.S. Foreign Agents Registration Act (“FARA”), and as foreign agents, they are required to register and update their registrations regarding each foreign client.
Registration under FARA is not limited to U.S. individuals and entities. Non-U.S. individuals and entities operating in the U.S. as foreign agents also need to register, regardless of whether the foreign government being represented is a friend, frenemy, or enemy. Here are some key legal terms and questions with which to become familiar to assess whether you or your company must register under FARA:
Are you working on behalf of a “foreign principal”?
This broad term generally refers to a government of a foreign country or a foreign political party, but it also includes any faction or body of insurgents within a country exercising governmental authority, whether or not that group is recognized by the United States as a legitimate government over legitimately-controlled territory. A foreign principal also includes a partnership, association, organization, or other combination of persons having its principal place of business in a foreign country. Nation-states, government entities, government officials, political parties, ousted dictators in exile, guerilla groups, and for-profit and nonprofit entities owned by any of the foregoing all fit into the definition of a foreign principal.
Are you engaging in “political activities” or will you act as “public relations counsel” or a “political consultant”?
Political activities means any activity the U.S. Department of Justice (DOJ) believes will influence or is intended to influence any U.S. agency or official or any section of the public within the United States. Public relations counsel refers to consulting with the foreign principal on how to sway public relations. Political consultants generally provide guidance on how to navigate interactions with state or federal legislative or executive branch members. The key of this analysis point is whether you are trying to sway U.S. government officials or U.S. voters. If you are only helping your client to engage with non-U.S. political actors and voters, then you may not be engaging in political activities or acting as public relations counsel or a political consultant for FARA registration purposes.
Who or what needs to register under FARA?
The business entity engaged on behalf of the foreign principal needs to register a primary registration statement, and each individual involved in performing political activities or acting as public relations counsel or a political consultant on behalf of the foreign principal needs to register under the primary registration statement on a short form registration statement. This includes employees and contractors of the FARA registrant entity. If the work on behalf of the foreign principal is being performed solely by an individual as an agent, representative, employee, servant, or in any other capacity at the request or under the direction of a foreign principal, then that individual needs to register a primary registration. Keep in mind that FARA registration only applies to actors engaging in the United States in conducting political activities or acting as public relations counsel or a political consultant.
The various relevant registration documents can be found here, all of which are filed electronically here and become public records (including your engagement letter and your fees actually received). In the third post we will walk through these forms in detail.
What are the penalties for non-compliance with FARA registration?
Penalties for non-compliance with FARA registration can be significant, especially if those activities involve hot-button topics and unpopular U.S. adversaries. The punishments and settlements made public by the DOJ range from probation, to months or years of prison time, to disgorgement of fees received from the foreign principal, with the worst punishments being assessed against individuals and businesses that made false statements in the registration process or to investigators trying to ascertain whether FARA violations occurred.
Whether you are working on behalf of official or quasi-official clients from China, Russia, Iran, India, Spain, or somewhere else, you need to assess whether your activities necessitate registration under FARA. Registration applies to those representing friends and foes, but foes particularly draw popular ire and DOJ scrutiny.
In Part 3 of this series, we will look at the specific FARA registration forms and discuss how to remain in compliance with the ongoing registration requirements.