House Judiciary to Mark Up H.R. 4170, the Disclosing Foreign Influence Act
Legal Sidebari
House Judiciary to Mark Up H.R. 4170, the
Disclosing Foreign Influence Act
January 16, 2018
The House Judiciary Committee has announced that it will hold a full committee markup hearing on
Wednesday, January 17 for H.R. 4170, the Disclosing Foreign Influence Act (DFIA). The bill, which has
a companion measure in the Senate (S. 2039), would amend the Foreign Agents Registration Act of 1938
(FARA). Congress originally enacted FARA in 1938 to promote transparency with respect to foreign
propaganda, but subsequent amendments have evolved its breadth and application to focus on
transparency of lobbying activities undertaken on behalf of a foreign client. However, in recent years,
internal investigations by the Department of Justice (which has the authority to enforce FARA),
congressional hearings, and media reports have highlighted the lack of enforcement of FARA’s
requirements, leading to the introduction of proposals such as H.R. 4170. This posting discusses the
framework of the current provisions in effect under FARA and examines the proposed changes that have
been introduced under H.R. 4170/S. 2039, the Disclosing Foreign Influence Act (DFIA).
Current Statutory Requirements of the Foreign Agents Registration Act
As discussed in more detail in this report, FARA generally requires that “agents of foreign principals”
(1) register with the U.S. Department of Justice; (2) disclose materials that they distribute on behalf of
their foreign principal; and (3) maintain records of their activities on behalf of the foreign principal.
Under the statute, an agent of a foreign principal is an individual or entity that engages in political
activities, public relations or other similar representation on behalf of a foreign government, foreign
political party, foreign person, or foreign corporation.
Registration: The primary mechanism of FARA’s regulatory scheme is its requirement that agents of
foreign principals register with the U.S. government by providing certain information and updating
that information at six-month intervals. Registration requires the agent to provide personal
identification information; descriptions of the agent’s business; information about the terms and
conditions of the representation of foreign principals; and information about income received from
foreign principals as well as expenditures related to the agent’s activities on behalf of the foreign
principal. The registration requirement serves as a trigger for the disclosure and recordkeeping
requirements, and any agent who registers must also comply with the other statutory mandates.
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Disclosure: Agents of foreign principals must also file copies of any “informational materials” that
the agent distributes on behalf of the foreign principal, if those materials are distributed through
interstate or foreign commerce and take a form that would reasonably be expected to be distributed to
two or more persons. Materials distributed by foreign agents must also include “conspicuous” and
“accurate” statements to identify the source of the material as an agent of a foreign principal.
Recordkeeping: Likewise, agents of foreign principals must also maintain records of their activities
and make such records available for government inspection to ensure compliance. These
recordkeeping requirements continue for three years after the agent terminates the representation of a
foreign principal and prohibits concealment or destruction of any records required to be kept under
the statute.
Exceptions. Any person who willfully violates FARA may be subject to civil and criminal
penalties upon conviction, including fines of up to $10,000 or imprisonment for no more than five
years. However, there are a number of individuals or entities that may act on behalf of a foreign
principal without being subject to FARA’s requirements under several exemptions to the statutory
requirements. These include:
Certain news organizations;
Foreign government officials, diplomats, and their staff;
Agents engaged in private and nonpolitical activities;
Agents representing foreign countries with defense interests vital to U.S. defense;
Practicing attorneys acting in the course of legal representation; and
Agents who otherwise register under the Lobbying Disclosure Act (LDA).
Amendments Proposed By H.R. 4170, the Disclosing Foreign Influence Act
FARA has been in effect for eight decades, but an audit by the DOJ Inspector General in September 2016
“found that there historically have been very few FARA prosecutions.” The audit report indicated that
FARA registrations “began to fall sharply in the mid-1990s.” Sponsors of the Disclosing Foreign
Influence Act have cited this “sharp drop in the number of registrations and the prospect of widespread
abuses” when explaining the bill’s purpose as addressing the “ambiguous requirements for those lobbying
on behalf of foreign governments.”
The Disclosing Foreign Influence Act includes proposals to amend FARA in three central ways.
Amending the Registration Requirement for Agents Subject to Domestic Lobbying
Disclosure. Section 2(a) of H.R. 4170 would repeal the exemption from the registration
requirement for agents who register under the Lobbying Disclosure Act of 1995 (LDA), a
disclosure statute designed to regulate the influence of domestic lobbyists. The LDA
exemption, which DOJ officials have suggested was a factor in the sharp decline in
registrations in the mid-1990s, allows agents who act on behalf of foreign principals are
not a foreign government or a foreign political party to register under the LDA instead of
under FARA. Thus, repeal of this exemption would require all activities covered under
FARA to be reported to DOJ, regardless of whether the foreign interest that was
represented was in the public or private sector. Additionally, section 2(b) would also
align all filing deadlines after the initial registration for FARA to coincide with the
deadlines of the LDA.
Providing Enhanced Investigative Authority for DOJ. Section 3 of H.R. 4170 would
provide the Attorney General with what is known as civil investigative demand authority,
an investigative device akin to a subpoena. Under this provision, the Attorney General
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would be authorized to compel individuals or entities to produce documents, testimony,
or answers to questions under oath that are relevant to a FARA investigation before
initiating civil or criminal enforcement proceedings. Specifically, with the proposed
authority, the Attorney General would be able to compel production whenever he or she
“has reason to believe that any person may be in possession, custody, or control of any
documentary material, or may have any information, relevant to an investigation under
this Act.” Such authority would augment DOJ’s authority, which currently is generally
focused on enforcement through voluntary compliance, to investigate potential violations
of agents of foreign principals who may be required to register under FARA. With the
proposed civil investigative demand authority, the Attorney General could seek a court
order for enforcement. The bill also includes a sunset provision, requiring the authority to
expire five years after enactment.
Establishing Enforcement Reporting Requirements. H.R. 4170 would also create new
oversight requirements of FARA enforcement and administration. Section 4 would
require the Attorney General to “develop and implement a comprehensive strategy to
improve the enforcement and administration of [FARA]” and would require the Inspector
General of DOJ to review that strategy on an ongoing basis and provide annual reports on
the results of its review to Congress. Section 5 would also require the Comptroller
General to analyze the effectiveness of enforcement and administration of FARA within
three years of the enactment of the legislation.
For additional analysis of the legal implications of FARA, see CRS Report R45037, The Foreign Agents
Registration Act (FARA): A Legal Overview and for information on registration data and policy issues
related to FARA, see CRS In Focus IF10499, Foreign Agents Registration Act: An Overview.
Author Information
Cynthia Brown
Legislative Attorney
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