Want to fight foreign influence? Fix FARA filings

President Trump’s personal attorney, Rudy Giuliani, has been in the cross-hairs of the impeachment inquiry for his efforts to get the Ukrainian government to investigate the president’s political rivals. Even before the impeachment inquiry began, there was an underlying question about the former New York mayor’s work abroad — that is, why isn’t Giuliani registered under the Foreign Agents Registration Act (FARA)?

Senate Democrats recently renewed an earlier request for the Department of Justice (DOJ) to investigate Giuliani’s compliance with FARA, citing a list of activities that would appear to require registration. A Ukrainian developer unambiguously said he hired Giuliani as a “lobbyist.” And Giuliani is now, reportedly, under investigation for working as an unregistered foreign agent in connection with the indictment of his business associates — who reportedly paid him a whopping $500,000 last year — for allegedly funneling money from a Ukrainian into U.S. elections.

What will we learn if Giuliani is found to have violated FARA and forced to retroactively register under the statute? Unfortunately, we probably won’t learn much, because FARA is a transparency statute that often provides little transparency. While the nation’s attention has been focused on unregistered foreign agents, registered foreign agents routinely fail to meet the requirements of the statute — and have been doing so with impunity.

First of all, most FARA filings are submitted late, sometimes extremely late. An audit of FARA by the DOJ Inspector General found that 62 percent of initial FARA registrations were late — some were filed nearly a year after the law requires — and, even after registering, just 44 percent of foreign agents filed subsequent disclosures on time.

Second, when foreign agents actually do get around to filing under FARA, many simply don’t disclose the information the statute requires. FARA registrants are required to provide details about their work to “a degree of specificity necessary to permit meaningful public evaluation of each of the significant steps taken,” on behalf of their foreign clients. Registrants often come nowhere close to meeting this threshold. In some cases, FARA registrants report none of the work they’ve done, answer questions with “see the attached” and then attach nothing, or report their political activities in nearly illegible cursive. 

Despite the rampant noncompliance with the statute amongst registrants, punishment for these infractions has been nonexistent. While ramped-up FARA enforcement has garnered headlines, every one of the recent cases in this so-called “FARA frenzy” has been for failure to register. None has been for violations committed by registrants. 

Because FARA enforcement relies almost exclusively on criminal penalties, specifically jail time, and civil fines can’t be issued for violations, DOJ has little recourse even when it knows registrants aren’t complying with the statute. Not surprisingly then, the DOJ Inspector General’s audit of FARA found that many firms still don’t comply with the statute even after DOJ notifies them that their filings are delinquent or deficient.

A key step towards fixing this glaring blind spot in the public’s ability to know what foreign powers are doing in America would be for Congress to pass the bipartisan Foreign Agents Registration Modernization (FARM) Act. This legislation would help to alleviate problems of non-compliance by requiring FARA filings be submitted in an electronic, structured data format that would help to eliminate confusion about what’s required in FARA filings and make it much easier to identify filings that fail to meet the disclosure requirements of the statute. The FARM Act also would establish a publicly available and easily searchable database containing this information, giving the public unprecedented access to information about what agents of foreign powers are doing in America. 

Notably, the FARM Act would be a significant improvement on the current FARA e-file system and would dramatically increase DOJ’s ability to identify delinquent or incomplete FARA filings.

Although more is needed to further encourage FARA compliance — such as civil penalties for late or incomplete filings — the FARM Act takes a much needed, and long overdue, step towards letting Americans know what foreign powers are doing to influence American democracy.

Ben Freeman is the director of the Foreign Influence Transparency Initiative at the Center for International Policy, a nonprofit foreign policy research and advocacy think tank with offices in Washington and New York City. Follow him on Twitter @BenFreemanDC.