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Enforcement Edge
November 17, 2021

FARM Act and ABA Task Force Recommendations Highlight Bipartisan Interest in FARA Reform

Enforcement Edge: Shining Light on Government Enforcement

In early November, a bipartisan group of federal legislators—Representatives Ro Khanna (D-CA) and Ken Buck (R-CO), and Senators Sheldon Whitehouse (D-RI) and Cynthia Lummis (R-WY)—introduced a bill to improve the Foreign Agent Registration Act (FARA). Titled the Foreign Agents Registration Modernization (FARM) Act, the new bill seeks to bring FARA’s filing process into the modern era. Under FARA, which was originally enacted in 1938, persons registering as foreign agents must report their activities and compensation on a regular basis. The required filings include initial registration statements as well as biannual supplementary updates. While all filings are currently publicly available on the Justice Department’s website, the FARA database can be difficult to navigate, often resulting in inconclusive search results.

The FARM Act addresses this problem by requiring registrants to file all forms in a digitized, standardized and searchable format. DOJ is in the process of implementing an electronic filing system, but it has released little guidance regarding the proper digital format for submissions. The Act would increase transparency, making information about registered foreign agents more accessible to the public. Originally introduced in the 116th Congress last year, the FARM Act is expected to receive bipartisan support.

Although the FARM Act is a relatively modest proposal, the American Bar Association’s FARA Task Force recently published a 60-page report presenting a wide range of proposed reforms. Starting with the basics, the Task Force suggests that Congress rename FARA, replacing “agent” with “representative” throughout the statute and in the title to reduce the political stigma associated with registering as a “foreign agent.” Many of the report’s proposals attempt to refocus the statute on its core historical purpose—addressing influence operations by foreign governments and political parties. For example, the Task Force recommends narrowing the “foreign principal” definition to foreign governments, foreign political parties, and those who act on their behalf. As the report explains, that proposal would eliminate the need to engage in the complex analysis currently needed to determine if registration is required for nonpolitical activity on behalf of foreign corporations and individuals.

In addition to those large-scale reforms, in early November, the co-chairs of the Task Force also highlighted several of the report’s “under the radar” reforms. These include a proposed requirement that foreign principals certify each filing’s accuracy and completeness, as a way to ensure they are involved in the registration process. As part of this discussion, the Task Force also highlighted a proposal to grant the Justice Department new authority to impose civil fines. The report also includes recommendations for both Congress and the Department of Justice. While highlighting some legislative opportunities, the report also asks Congress to clarify the meanings of key terms and exemptions. These recommendations and the proposed FARM Act are the latest indications of increased interest in modernizing FARA and its enforcement.

For questions about FARA, please reach out to the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.