How to Comply with the Foreign Agents Registration Act (“FARA”) Without Really Trying: A Guide to the Exemptions

Jason Torchinsky, jt@hvjt.law | Steve Roberts, sroberts@hvjt.law

The Foreign Agents Registration Act, or “FARA,” has been making headlines recently. You may be wondering: “What is FARA?” “Am I required to register under FARA?” “Does FARA apply to me?” These are important questions to ask, since failure to comply with FARA on its own can carry criminal penalties of up to 5 years imprisonment and a $10,000 fine.

FARA registration and reporting can be burdensome, but fortunately many exemptions in the statute permit a filer to comply using less onerous reporting requirements, or even making no registration at all. At its base, FARA requires any entity or individual acting as an agent of a foreign principal to register with the Department of Justice and make regular reports of their activity. An “agent of a foreign principal” can be a person or entity hired, employed or otherwise controlled, directly or indirectly, by a foreign principal to act in the United States for the purpose of: engaging in political activities; acting as a public relations or political consultant; soliciting or distributing funds; or representing the interests of a foreign principal with an employee of the United States Government. A “foreign principal” is any entity outside of the United States, including a foreign government or foreign political party; a private individual; or a business entity organized or established with a principal place of business outside the United States.

An agent of a foreign principal must meet a significant number of burdens to comply with FARA, including: registering within 10 days of triggering, including disclosure of corporate information, principal represented, compensation terms, and political contributions; preparing and filing regular reports of activity on behalf of all foreign principals every six months; labeling with appropriate disclaimers any informational materials it distributes on behalf of a foreign principal; and filing those informational materials with the Department of Justice within 48 hours of their dissemination.

The number of individuals and entities meeting the definition of an “agent of a foreign principal” far exceed the number who are required to comply with the burdensome requirements of FARA. The numerous exemptions to who must register under the statute make that possible. Some of the relevant registration exemptions include:

  • Any person engaging only in the private, nonpolitical (commercial) activities of a foreign principal;
  • Any person engaging only in soliciting funds for medical aid or assistance, or for food and clothing to relieve human suffering, even if done at the direction of a foreign principal;
  • Any person engaging only in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts;
  • Any person engaging only in the interests of a government deemed vital to United States defense;
  • Diplomatic or consular officers, or their staff members;
  • Officials of a foreign government;
  • Lawyers engaging in legal proceedings; and
  • Individuals and entities required to register under the Lobbying Disclosure Act, or “LDA,” if they actually do register and report under the LDA, and so long as the foreign principal is not a foreign government or political party.

The so-called “LDA exemption,” described briefly in the final bullet above, is a major way that foreign agents comply with FARA without even trying. By registering and reporting under the simpler compliance requirements of the LDA, a foreign agent can minimize compliance burdens frequently felt by those seeking to comply with FARA.

However, a major proposal could eliminate this exemption altogether. Senator Chuck Grassley (R-Iowa) and Representative Mike Johnson (R-La.) introduced identical legislation that would require registration under both FARA and the LDA for a foreign agent triggering both of those statutes. The legislation would also increase the reporting frequency under FARA from semi-annually to quarterly for LDA registrants, to match the timing of LDA reports. We are monitoring the status of that legislation and will advise our clients when their compliance obligations change under either FARA or the LDA.

For more information, please contact:
Jason Torchinsky, jt@hvjt.law | Steve Roberts, sroberts@hvjt.law

The foregoing is for informational purposes only and should not be considered as legal advice. Any content included above is not fact-specific and should not be relied upon in any particular set of facts or planned activities to determine any legal outcome.