The House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on Tuesday on potential reform of the Foreign Agents Registration Act (“FARA”), the first FARA hearing by the House Judiciary Committee in over 30 years.
FARA is an arcane statute that requires “agents of foreign principals” engaged in certain enumerated activities to register with the Department of Justice (“DOJ”) and file both detailed disclosure reports and copies of any “informational materials” that are distributed within the United States. As the witnesses and members of the Subcommittee pointed out, the 1938 statute contains sweeping provisions that are famously vague and that have not been modernized to meet the realities of the 21st Century.
While the witnesses broadly acknowledged the problematic ambiguity and lack of clarity of the statute, they varied in their views about how to reform FARA and provide more certainty to the regulated community. A representative of the Project on Government Oversight, Dylan Hedtler-Gaudette, sharply criticized the Department of Justice’s lax enforcement, testifying that it “has not and continues to not sufficiently prioritize the enforcement and administration of this law.” On the other hand, law professor Jonathan Turley criticized the Department of Justice’s aggressive use of overbroad provisions of the statute in its enforcement. Professor Turley highlighted free speech concerns and the Department’s broad interpretation of the statute as applied to nonprofits in a recent advisory opinion, calling the opinion an “alarm for Congress.”
This divide between more aggressive enforcement of FARA and narrowing the statute was a common theme throughout the hearing, by both the witnesses and the members of the Subcommittee. There also seemed to be few substantive openings for bipartisan consensus. The minority members of the Subcommittee principally focused on FARA as a potential mechanism to pursue investigations of Hunter Biden. As a result, the prospect of bipartisan legislative reform appears dim.
Surprisingly, the hearing addressed very few substantive proposals that FARA practitioners and the Department of Justice have focused on recently in the context of DOJ’s Advance Notice of Proposed Rulemaking (“ANPRM”) to modernize FARA. These potential administrative changes might address some of the concerns expressed by the witnesses and members of the Subcommittee. For example, nearly all of the witnesses called for more clarity and “clear lines” with respect to the exemptions to FARA, but they offered few practical solutions for how common exemptions like the commercial exemption or the legal exemption should be changed. Accordingly, while there may not be much hope for broad consensus for legislative reforms, the Department of Justice may still provide more clarity through regulation.