The Danger of Banning Foreign Lobbying

The 2016 election revealed how susceptible the United States is to disinformation, cyberattacks, and attempts by foreign governments to subvert the democratic process. Foreign groups sought to interfere in the presidential contest in unprecedented ways, including through the manipulation of social media and through direct outreach to the campaign of Donald Trump. Four years later, Americans better understand that foreign governments and entities are bent on undermining the U.S. political system.
 
Legislators have put forth a range of reforms designed to thwart foreign interference, including by closing campaign finance loopholes and by preventing civil society organizations from liaising with sanctioned foreign individuals. Many of these proposals have won wide support, in part because of concerns about the security of the upcoming presidential election.
 
One proposed reform, however, would go further than all the others floated so far-and it has received little attention despite the magnitude of its implications. Former Vice President Joe Biden has pledged to ban all foreign lobbying in the United States. This bold proposal reflects how seriously Biden and his advisers take the threat of foreign interference in U.S. politics. But such a sweeping measure risks causing more problems than it solves. A Biden administration should instead focus on reforming and refining existing regulations to help protect the United States' democracy from the corrupting influence of foreign money.
 
THE BIDEN BAN
 
Earlier this year, Biden called for a measure that no other Western democracy has implemented. Should he win the presidency, Biden announced, he would move immediately to ban Americans from lobbying for foreign governments. Lobbyists and public relations specialists alike would no longer be allowed to promote the interests of foreign governments and entities to legislators or to the broader American public. Biden has taken a clear lead on this front; the only other notable politician to push for similar legislation recently is Elizabeth Warren, the Democratic senator from Massachusetts, who during the primaries promised to bar Americans from lobbying for all foreign entities. (Needless to say, neither Trump nor any of his allies have proposed any similar measure.)
 
Officials have largely overlooked foreign lobbying since the passage of the Foreign Agents Registration Act of 1938. FARA requires Americans providing lobbying, public relations, or consulting services to "foreign principals," which include foreign governments, companies, and individuals, to register and disclose their activities to the U.S. Department of Justice. However, officials did not enforce FARA very often before 2016, with only a handful of prosecutions launched for violations in the past 50 years. When officials did choose to enforce the statute, they applied the legislation selectively to target individuals, including luminaries such as W. E. B. Du Bois. The Justice Department's enforcement record was, as one scholar noted, "abysmal." But Trump's 2016 presidential campaign breathed new life into the enforcement of FARA. Several Trump campaign officials were caught violating FARA statutes that require registration for work on behalf of foreign entities. Campaign chair Paul Manafort and his deputy, Rick Gates, helped promote autocratic Ukrainian politicians. Former National Security Adviser Michael Flynn secretly worked in the service of the Turkish government. All three failed to make the proper disclosures.
 
Since 2016, FARA registrations have spiked. The Department of Justice has dedicated new resources to FARA-related investigations, while demanding that new entities-including outlets funded by foreign kleptocratic dictatorships, such as the Russian media organizations RT and Sputnik-register as foreign agents. U.S. media have also taken a greater interest in potential FARA-related controversies, highlighting how foreign entities in Ukraine bankrolled former New York City Mayor Rudy Giuliani's efforts to dig up information about Biden and the unreported foreign work of Richard Grenell, Trump's former acting director of national intelligence, who wrote flattering articles for U.S. audiences about a Moldovan oligarch turned politician without registering as a foreign agent.
 
The scrutiny on Trump's 2016 campaign and his administration has revived FARA, which had produced only a handful of successful convictions in previous decades. FARA is no longer a forgotten and oft ignored piece of New Deal-era reforms. Eight decades after being enacted, FARA is finally worth the paper it was written on.
 
FIXING WHAT ISN'T BROKEN
 
Better implementation of FARA in recent years should persuade a potential President Biden to reconsider his pledge to ban foreign lobbying wholesale. Instead, he should fine-tune current regulations, enact and expand much-needed reforms, and marshal the full weight and resources of an administration that takes the threats of foreign interference seriously.
 
Making it illegal for U.S. lobbyists and spin doctors to work on behalf of foreign regimes raises a number of thorny issues. Lobbying remains one of the constitutional rights ensconced in the First Amendment, with Americans permitted to freely petition their government regardless of topic. No matter how loathsome their clients-whether they're kleptocratic dictatorships in Equatorial Guinea, Russia, or Tajikistan-Americans still enjoy broad constitutional protections, which opponents of the ban will cite in fighting any new prohibitions. In short, any action to ban outright lobbying for foreign governments would likely be deemed unconstitutional.
 
Legislators would also have to determine to whom, exactly, such a ban would apply. Biden's proposed ban specifically targets governments and foreign politicians-if "a foreign government wants to share its views with the United States or to influence its decision-making, it should do so through regular diplomatic channels," Biden wrote. But would such a ban apply to all FARA-registered entities funded by foreign governments? That is, would such a move serve as a pretext to also ban foreign propaganda outlets such as RT and Sputnik? Banning media organizations in this way would cut against the United States' broad free speech protections and set a dangerous precedent for future administrations.
 
It is also facile to think that foreign governments rely only on lobbyists to influence U.S. policy. Nongovernmental figures-including those post-Soviet oligarchs at the heart of Trump's recent impeachment scandal-have acted as effective proxies in the United States for foreign governments abroad for years. Biden's proposal doesn't specifically prohibit U.S. lobbyists or public relations specialists from working with such figures and could drain resources that might otherwise be directed toward investigating and revealing these oligarchic relationships. Future administrations might view Biden's ban as a simple panacea, effectively allowing foreign oligarchs to continue acting as foot soldiers for malign, adversarial governments abroad.
 
 
And U.S. officials should be prepared for the global consequences of such a broad ban. Hungary, Russia, and other countries have cynically manipulated the precedent of FARA to enact their own "foreign agents" laws aimed specifically at undermining civil society groups that advance pro-democracy reforms. An outright ban would, unfortunately, offer the perfect pretext for these autocracies and dictatorships to finally drop the ax on any group it can connect to foreign funding, including long-operating U.S. organizations trying to stem the rising tide of authoritarianism in many parts of the world.
 
MODEST CHANGES
 
Thankfully, there are several reform proposals already available that would retain the best aspects of FARA without running the risks detailed above. The first of these is simply a matter of devoting resources and shaping priorities: the next administration should ensure that the Justice Department is fully staffed, able to investigate potential FARA-related violations, and prepared to investigate figures-such as Giuliani and Grenell-no matter their connections to previous administrations. A Biden administration could pass regulations or legislation barring all current and former government officials and members of Congress from working in any lobbying capacity for foreign entities for a significant period of time-perhaps ten years, as previous congressional proposals have suggested-building on a previous precedent of placing lobbying restrictions on former officials. This move would go a long way toward ending the trend of former legislators cashing in on foreign largess after leaving office.
 
It is also past time for the United States to require its lobbying and public relations industry to perform basic due diligence regarding its clients. Like art dealers, auction houses, and many investment firms, lobbying outfits have for years benefited from the lack of serious anti-money-laundering laws. They are largely free to work with clients regardless of the source of their income.
 
Fortunately, there is precedent for a legal regime requiring these industries to conduct due diligence on their clients. Legislators forced anti-money-laundering reforms on U.S. banks following the 9/11 attacks, explicitly prohibiting banks from handling the proceeds of foreign corruption and forcing them to set up internal anti-money-laundering systems. These requirements could be repackaged as part of broader anti-kleptocracy efforts, such as banning anonymous shell companies and publicizing the names of foreign officials barred from the United States on account of corruption, alongside reforms targeting the legal and real estate sectors-both of which play key roles in laundering dirty foreign money in the United States. The government should also consider scrutiny of foreign donations to think tanks, which have totaled more than $174 million in the past few years.
 
These reforms will require separate efforts, each with its own reserve of political capital, to enact. But together, they would take a sledgehammer to foreign influence peddling in Washington. A future Biden administration should avoid the pitfalls of a potentially unconstitutional ban and all the problems that would follow both at home and abroad. Instead, it should renovate FARA to help clean up the entire foreign-lobbying sector and prevent the United States from becoming a haven for illicit funds and the selling of access and influence.
 
This article was originally published on ForeignAffairs.com.