Policy

Foreign Lobbying Overhauls Stall as Manafort Goes to Trial

Critics say no measure gets to the root of 1938 law’s problems

UNITED STATES - NOVEMBER 6: Former Trump campaign chairman Paul Manafort leaves the E. Barrett Prettyman U.S. Courthouse after a court hearing on the terms of his bail and house arrest on Monday, Nov. 6, 2017. (Photo By Bill Clark/CQ Roll Call)

This Congress has a crush on the idea of overhauling the nation’s foreign lobbying regulations, but lawmakers apparently can’t seem to find the one bill they want to commit to.

Senators and House members from both parties have introduced at least a dozen bills to update the 80-year-old statute that governs foreign influence campaigns on U.S. soil. Yet all those proposals remain stalled on Capitol Hill, just when the first trial of ex-lobbyist and onetime Trump campaign chairman Paul Manafort may brighten the spotlight on the far-flung international influence business.

Manafort will stand trial starting Tuesday on tax and bank fraud charges and again in September in a separate trial focused on charges that he failed to register as a foreign agent under the 1938 Foreign Agents Registration Act.

The Manafort case, along with the special counsel investigation into foreign interference in the 2016 elections that it stemmed from, have given the act known as FARA unprecedented name recognition on Capitol Hill, and lawmakers from both parties have called for an overhaul.

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Yet critics of the various proposals say none of them gets to the root of the law’s problems, which is that it’s overly vague and out of date. Lawmakers behind the various foreign lobbying bills say they want to toughen up the Justice Department’s enforcement of the law to renew public confidence that Congress isn’t working at the behest of unknown international influences.

“It is incumbent on us to do that in light of all the new information we now have about attempts to interfere in our democracy and our elections,” said Rep. John Sarbanes, who proposed a lobbying overhaul bill on July 25 that would require lobbyists for foreign corporations to register as foreign agents.

As chairman of House Democrats’ Democracy Reform Task Force, the Maryland lawmaker is cataloguing numerous bills that relate to lobbying, campaign finance and foreign agent overhauls, including one from Ohio Democratic Rep. Marcy Kaptur that would ban political donations from nonprofit organizations that get at least 20 percent of their funding from foreign nationals.

That measure, like Sarbanes’ bill, would require lobbyists for foreign corporations to register as foreign agents. The current system allows them to register under the Lobbying Disclosure Act, which requires less information. The Kaptur bill would also give new subpoena-like authority to the Justice Department to investigate potential FARA violations.

Competing measures

The registration requirements and subpoena-like authorities are similar to provisions in a bipartisan bill that the House Judiciary Committee approved in January but has not been slated for floor action.

“In view of what’s happening around the world, with hybrid warfare, with interference in our electronic media and social media by foreign interests, this is a time for us to be very reflective and analytical and try to fix this as best we can so that U.S. elections belong to the American people again,” Kaptur said recently during an interview in her congressional office. “Bills like this hardly see the light of day because it’s real reform.”

Brendan Fischer, director of federal reform for the Campaign Legal Center, a nonpartisan, nonprofit watchdog group, said the biggest difference between Kaptur’s and other measures is that her bill also focuses on the campaign finance aspect, something his group supports.

That’s a growing concern not only because of the Manafort case but also the recent arrest of Maria Butina, a Russian gun rights activist who was charged with working as a foreign agent.

“It looks to close the many loopholes that foreign actors have used to secretly influence American democracy both during elections and after,” Fischer said.

Revising FARA has bipartisan support. Louisiana GOP Rep. Mike Johnson is the lead sponsor of the bill that made it out of the House Judiciary Committee. Senate Judiciary Chairman Charles E. Grassley of Iowa sponsored a nearly identical measure, which has not advanced in that chamber.

Another FARA overhaul bill from Senate Majority Whip John Cornyn of Texas and California Democratic Sen. Dianne Feinstein has also not advanced.

“There is bipartisan support for updating FARA, and the threat of foreign influence over the U.S. democracy remains in full force,” Fischer said. “It should be easy.”

‘A political approach’

Critics of some of the proposals, though, say lawmakers haven’t gotten it right yet.

“They are all are focused on ‘toughening’ the statute, which is a political approach, but not an approach that will make it more effective,” said Robert Kelner, a partner at Covington & Burling and an expert on the foreign lobbying law. “My major point is that FARA has been in need of a major overhaul for decades. It’s an extremely vague statute, and recent developments have only made it more difficult to advise clients on what exactly triggers registration.”

Kelner represents Michael Flynn, a former Trump national security adviser who has pleaded guilty in the special counsel probe.

Kelner said the original law uses such terms as “publicity agent,” which he considers out of date today. “These are old-fashioned terms that might have meant something at the time, but I’m not sure they match up with anything going on in the world today,” he said.

Nicholas Robinson, a legal adviser for the International Center for Not-for-Profit Law, said his organization has expressed concerns about the overhauls to lawmakers who are seeking to ramp up enforcement. Like Kelner, he said the statute is too vague to increase enforcement without also spelling out better who would meet the definition of a foreign agent.

“We think Congress needs to address these overly broad and confusing definitions in the act,” Robinson said. “We understand why Congress has this focus right now on FARA, but we think that FARA itself needs to be more targeted before it’s ramped up.”

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