Thomas Edsall recently published an interesting op-ed in the New York Times about the changing nature of lobbying in Washington.  Edsall, who spent twenty-five years covering politics for the Washington Post, writes about the decline of direct lobbying based on relationships with policymakers, and the corresponding rise of consultants who provide strategic communications advice and direct public relations campaigns designed to influence Members of Congress through their constituents.  According to Edsall, a key consideration is avoiding registration under the Lobbying Disclosure Act:  “By working as policy advisors and in other ‘unlobbyist’ positions,” Edsall quotes from the Center for Responsive Politics, “former lobbyists can keep their current jobs but escape the consequences of being registered.”

The Lobbying Disclosure Act, however, is not the only federal law directed at public disclosure of efforts to influence policy, and unlobbyists engaging in public relations campaigns for foreign entities may find that their activities have inadvertently triggered the registration and reporting requirements of the often-overlooked Foreign Agents Registration Act.  There is a widespread misperception that FARA only applies when an individual is lobbying on behalf of a foreign government.  While the statute does indeed apply in that instance, its scope is broader.  Working in the United States on behalf of anyone outside the United States – including a foreign corporation, individual, or association – can trigger the statute in certain circumstances.  And the statute covers much more than lobbying.

There is some good news for consultants working for foreign corporations.  In a 2003 regulation, the Department of Justice exempted from FARA’s scope “political activities” (seeking to influence the U.S. government or U.S. public on a matter of policy) when undertaken on behalf of the commercial interests of a foreign corporation.  Importantly, however, this regulatory change did not affect a separate FARA trigger for acting as a “public relations counsel” or “publicity agent” for a foreign entity.

The FARA statute uses extremely broad language, and there is very little case law that could interpret and narrow its boundaries.  As a result, we have found that lobbyists, consultants, and PR firms sometimes inadvertently trigger the statute.  The application of FARA is highly fact specific, and the statute should be considered carefully, by competent counsel, whenever a consultant is engaged by anyone outside the United States.