On Thursday, the Senate passed two bills — The Lobbying Disclosure Improvement Act (S. 264) and Disclosing Foreign Influence in Lobbying Act (S. 289) — that attempt to increase disclosure of Foreign Agents Registration Act (“FARA”) activity through amendments to the Lobbying Disclosure Act (“LDA”). The Senate passed versions of these bills late last year, although the full House of Representatives did not consider the bills before the 117th Congress adjourned. Senators Chuck Grassley (R-Iowa) and Gary Peters (D-Mich.) re-introduced the bills earlier this year, and the Senate passed the bills Thursday by unanimous consent.
As Covington previously reported, the Lobbying Disclosure Improvement Act would require LDA registrants to identify on their LDA registration “whether the registrant is exempt under” FARA’s LDA exemption. This is an administrative change that would require certain LDA registrants to check a box on their filings. Congress appears to have intended to make it easier for the public to identify LDA registrants engaged in FARA registrable activities, which could also make it easier for the FARA Unit of the Department of Justice to flag and scrutinize the activities of such LDA registrants. The wording of the bill is somewhat ambiguous with respect to how this change affects current LDA registrants. Because most changes to the information on an LDA filer’s registration are made on the filer’s quarterly activity reports, it is relatively rare to file an amended LDA registration report. The bill does not address how current registrants should handle the new requirement if they are likely never to be in a position to file another registration report. The bill also does not address filers who initially file under the LDA because they have crossed LDA registration thresholds, but later engage in FARA registrable activities and take advantage of the LDA exemption based on their existing LDA registration. This change, if enacted, would present new challenges for the regulated community. The amendment assumes that it is always clear when a filer has a FARA registration obligation and is relying on the LDA exemption, but that is not always the case. This amendment would force LDA registrants to take a position on whether or not they believe they are engaged in FARA registrable activities.
The Disclosing Foreign Influence in Lobbying Act would amend the LDA registration requirements to require that LDA filers “identify any connection with a foreign government or political party that plans, supervises, directs, or controls any effort of that lobbyist, regardless of those entities’ financial contributions to the lobbying effort.” Currently, LDA registrants are required to identify certain foreign entities associated with the registrant or its lobbying activities. This change would expand that requirement to focus specifically on the involvement of foreign governments in a registrant’s lobbying activities. Responding in the affirmative to the new disclosure requirement could amount to an admission that the LDA exemption would not apply and that LDA registration would not be sufficient on its own, presumably steering registrants to file under FARA.
Both the “Lobbying Disclosure Improvement Act” and “Disclosing Foreign Influence in Lobbying Act” now await House action. Despite the divided 118th Congress, the prompt re-introduction and passage of the bills in the Senate reveal the bipartisan appetite for FARA reform. While there is general agreement that FARA requires legislative reforms to update the statute and to provide more clarity to the regulated community, these bills propose relatively modest administrative changes that may introduce more confusion than clarity. The Department of Justice endorsed more comprehensive legislative reform last year, and it is expected to issue new proposed regulations this year. Covington will continue to monitor developments in changes to FARA and its regulations.