The Department of Justice’s FARA Unit released several new advisory opinions today interpreting the Foreign Agents Registration Act (“FARA”) and its regulations. While the newly published opinions addressed a number of topics, the FARA Unit’s scrutiny of the activity of nonprofits was a prominent and recurring theme.
Many nonprofits, think tanks, universities, religious organizations, educational institutions, and charitable organizations, rely on the so-called academic exemption to FARA. This exemption applies to those who engage “only” in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts. However, regulations to the statute provide that this exemption does not apply where the agent of a foreign principal engages in political activities “for or in the interests of” the foreign principal.
The new advisory opinions shed important light on the scope and limitations of the exemption. In one opinion, the FARA Unit interpreted the exemption narrowly, concluding that the Vice President of a private foreign university was required to register under FARA for “conduct[ing] outreach and advocacy” to U.S. government officials “to promote [the foreign university’s] mission, goals, and financial priorities.” The FARA Unit reasoned that the outreach involved advocacy to obtain grants from the U.S. government and was, therefore, not only in furtherance of the scholastic and academic pursuits of the University.
In another opinion, the FARA Unit concluded that a not-for-profit charitable organization established by a foreign government to increase “friendship and goodwill” between a foreign country and “the rest of the world” through exchange programs was required to register. The FARA Unit reasoned that the activities would influence the U.S. public to view the foreign government “in a positive light” and “ultimately foster beneficial U.S. foreign policies” with respect to the foreign country. Because the organization was engaged in political activities, the academic exemption did not apply.
Not all of the advisory opinions were as foreboding with respect to academic activity. The FARA Unit decided that a university professor was not required to register for providing a foreign government with factual, “independent analysis of issues of international law” within the professor’s expertise because the information was not intended to influence the U.S. public with regard to U.S. or foreign policy. The opinion did not reach the academic exemption, instead concluding that the professor’s activity did not meet any of the FARA-enumerated activities.
These interpretations of the exemption should prompt nonprofits and other organizations relying on the academic exemption to consider whether registration may be required. As Covington reported last year, the DOJ is currently considering changes to the academic exemption through an advance notice of proposed rulemaking (“ANPRM”). While the ANPRM is still an early step in the administrative law process, further changes to the scope of the exemption may be significant for nonprofits that deal with foreign government and policy issues and that are not currently registered.