The House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on Tuesday on potential reform of the Foreign Agents Registration Act (“FARA”), the first FARA hearing by the House Judiciary Committee in over 30 years.

FARA is an arcane statute that requires “agents of foreign principals” engaged in certain enumerated activities to register with the Department of Justice (“DOJ”) and file both detailed disclosure reports and copies of any “informational materials” that are distributed within the United States. As the witnesses and members of the Subcommittee pointed out, the 1938 statute contains sweeping provisions that are famously vague and that have not been modernized to meet the realities of the 21st Century.

While the witnesses broadly acknowledged the problematic ambiguity and lack of clarity of the statute, they varied in their views about how to reform FARA and provide more certainty to the regulated community. A representative of the Project on Government Oversight, Dylan Hedtler-Gaudette, sharply criticized the Department of Justice’s lax enforcement, testifying that it “has not and continues to not sufficiently prioritize the enforcement and administration of this law.” On the other hand, law professor Jonathan Turley criticized the Department of Justice’s aggressive use of overbroad provisions of the statute in its enforcement. Professor Turley highlighted free speech concerns and the Department’s broad interpretation of the statute as applied to nonprofits in a recent advisory opinion, calling the opinion an “alarm for Congress.”

This divide between more aggressive enforcement of FARA and narrowing the statute was a common theme throughout the hearing, by both the witnesses and the members of the Subcommittee. There also seemed to be few substantive openings for bipartisan consensus.  The minority members of the Subcommittee principally focused on FARA as a potential mechanism to pursue investigations of Hunter Biden. As a result, the prospect of bipartisan legislative reform appears dim.

Surprisingly, the hearing addressed very few substantive proposals that FARA practitioners and the Department of Justice have focused on recently in the context of DOJ’s Advance Notice of Proposed Rulemaking (“ANPRM”) to modernize FARA. These potential administrative changes might address some of the concerns expressed by the witnesses and members of the Subcommittee. For example, nearly all of the witnesses called for more clarity and “clear lines” with respect to the exemptions to FARA, but they offered few practical solutions for how common exemptions like the commercial exemption or the legal exemption should be changed.  Accordingly, while there may not be much hope for broad consensus for legislative reforms, the Department of Justice may still provide more clarity through regulation.

Tags: congressional hearing, FARA
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Photo of Alex Langton Alex Langton

Alexandra Langton is an associate in Covington’s Election and Political Law Practice Group in the firm’s Washington, DC office. Her practice focuses on representing corporations, nonprofit organizations, public officials, and individuals in high-stakes matters involving legal, political, and reputational risk. She routinely counsels…

Alexandra Langton is an associate in Covington’s Election and Political Law Practice Group in the firm’s Washington, DC office. Her practice focuses on representing corporations, nonprofit organizations, public officials, and individuals in high-stakes matters involving legal, political, and reputational risk. She routinely counsels clients in matters arising from investigations and enforcement actions by the Department of Justice, the Federal Election Commission, congressional committees, and state regulatory authorities, as well as related internal investigations.

In addition to her investigations practice, Alexandra advises clients on compliance with federal and state campaign finance, ethics, and lobbying laws, including sensitive matters. Her work frequently involves advising on the application of federal ethics rules arising in connection with government transitions, appointments, and engagements involving current or former public officials. She also represents clients in state-level campaign finance enforcement matters and compliance reviews.

Alexandra has particular expertise in the Foreign Agents Registration Act (FARA) and is deeply involved in all aspects of FARA compliance and enforcement. She regularly interacts with the Department of Justice’s FARA Unit and advises clients on the design, implementation, and maintenance of sophisticated FARA compliance programs, including internal policies, tailored training programs, and registration and reporting obligations. She also represents clients in high-profile civil and criminal FARA enforcement matters, including internal investigations, retroactive registrations, and disputes with the government. Alexandra also regularly advises on compliance with the federal Lobbying Disclosure Act (LDA) and related reporting regimes, including the complex interplay between the LDA and FARA.

Her experience also includes advising current and former government officials in connection with federal investigations and related litigation, drawing on a detailed understanding of investigative processes and the unique sensitivities presented by matters involving senior public service roles.

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Photo of Perrin Cooke Perrin Cooke

Perrin Cooke is special counsel in the firm’s Washington, DC office and a member of the White Collar Defense and Investigations, Election and Political Law, and Public Policy Practice Groups, with a focus on assisting clients responding to high-profile congressional investigations.

Drawing on…

Perrin Cooke is special counsel in the firm’s Washington, DC office and a member of the White Collar Defense and Investigations, Election and Political Law, and Public Policy Practice Groups, with a focus on assisting clients responding to high-profile congressional investigations.

Drawing on his experience in government, most recently as Deputy General Counsel at the U.S. Department of Health and Human Services, Perrin advises clients on matters presenting significant legal, political, and reputational risks. During the Biden Administration, Perrin served as the lead attorney on oversight matters across two federal agencies. In this capacity, he guided the development of strategic responses to congressional requests and subpoenas touching on a range of topics. Through his work in both government and private practice, Perrin has extensive experience preparing witnesses – including numerous corporate executives, cabinet secretaries, and other senior government officials – appearing in briefings, transcribed interviews, and hearings before congressional oversight committees.

In addition to his investigations practice, Perrin advises clients – including political campaigns, advocacy organizations, trade associations, and corporations – on a wide variety of election and political law compliance matters.

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