This week, world leaders from 32 countries are descending on Washington, DC for the North Atlantic Treaty Organization’s (NATO) 75th anniversary summit. Whenever world leaders gather in one place, there will be many ad-on meetings outside of the formal event at the Washington Convention Center. Lobbyists, public affairs firms, and nonprofits involved on the sidelines of the summit need to be alert because they may unwittingly walk into a Foreign Agents Registration Act (FARA) minefield.
Under FARA, those who agree to engage in certain political activities on behalf of foreign government officials must register and file reports with the Department of Justice as foreign agents. The Department of Justice’s recent—and aggressive—enforcement of this nearly 100-year-old statute has put many in Washington who work with international clients on edge.
FARA Covers Uncompensated Activity and Even Requests to Set up Meetings
FARA is vague and broad. Many are surprised to learn that one can become a foreign agent simply by agreeing to a request from a foreign government official—even if there is no contract and no payment. Unlike for the federal Lobbying Disclosure Act, payment is not a prerequisite. What is more, there is no threshold for registration, or exception for de minimis activity. A single act—be it a phone call, email, or meeting—can be enough to trigger registration.
The Department of Justice interprets political activity very broadly—well beyond the ordinary meaning of the term. Relevant to the summit, arranging meetings between foreign government officials and U.S. government officials can be “political activity,” as can advising a foreign government on their engagement strategy with U.S. government officials, even if you do not accompany the foreign officials in their interactions.
FARA does not apply just to acting on behalf of America’s adversaries. Acting on behalf of our NATO allies is covered too.
FARA Registration Triggers Lurk on the Sidelines of Major International Political Meetings in DC
FARA is not intuitive. Thus experienced government affairs experts may unwittingly find themselves in a situation surrounding the NATO summit in which FARA registration is a real possibility.
For example, suppose you work at a public affairs firm and an old college friend of yours is coming to DC for the summit. Your friend asks you for a favor because he knows you used to work on Capitol Hill. Can you help him set up some meetings between his boss—a senior foreign government official—and some members of Congress while they are in town for the summit? You agree. By doing so, you may very well have triggered an obligation to register under FARA.
Or let’s say you are a military analyst at a nonprofit. A foreign military official who reads your work has a request for you. They want some advice about setting up a meeting with U.S. defense contractors and DOD officials while they are in town so they can talk about military procurement. You agree to the request. Is FARA triggered?
If you are being paid by a foreign government, the analysis is simple: You are a foreign agent. But the terrain is less certain when a foreign government asks you for an uncompensated favor or makes a specific request as in the examples above.
As we have seen with other conferences involving world leaders held in DC, FARA triggers are lurking on the sidelines. Knowing about these FARA risks is only half the battle. Successfully navigating them is the other.
