Chairman Nadler Statement for Hearing on "Enhancing the Foreign Agents Registration Act of 1938"
Washington, April 5, 2022
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "Enhancing the Foreign Agents Registration Act of 1938:"
“Today’s hearing on the Foreign Agents Registration Act of 1938—often referred to by its acronym, “FARA”—is an important opportunity for Members to learn about the origins and development of the Act, and to consider potential enhancements.
“Although FARA has been on the books for decades, the statute remains relatively obscure to Members and the public. As Chairman Cohen noted, it has been over thirty years since the House Judiciary Committee last held a hearing on FARA. Then-Representative Dan Glickman—who was invited to testify at that hearing—remarked at the time that FARA is “either widely misunderstood, ignored, poorly written, not enforced or all of the above.”
“While I would add that FARA is an important tool for government transparency and would note that the Justice Department has taken steps to improve enforcement of the Act in recent years, the gist of Representative Glickman’s statement arguably still applies today.
“Passed by Congress in 1938 to combat the influence of Nazi propaganda, FARA is a public disclosure law that generally requires an “agent of a foreign principal” engaged in certain covered activities on behalf of a “foreign principal” to register with the Department of Justice.
“In the 1960s, Congress amended FARA to reorient the statute away from exposing sources of foreign propaganda towards concerns regarding efforts by foreign interests to influence U.S. policy through lobbying.
“For decades, however, FARA went relatively under-enforced by the Justice Department. A 2016 Office of Inspector General report noted that the Department brought only seven criminal FARA cases between 1966 and 2015.
“The Justice Department has recently stepped up FARA enforcement since the 2016 presidential election, and the special counsel’s prosecution of several individuals—including former Trump campaign manager Paul Manafort and former National Security Advisor Michel Flynn—for charges related to FARA violations stemming from political activities they engaged in on behalf of foreign governments.
“This increased enforcement appears to have had an effect. According to one former Justice Department official’s post to the website Just Security, the number of FARA registrants has increased by 50 percent since 2016.
“This past December, the Department also published an advanced notice of proposed rulemaking seeking public comment on potential changes to modernize FARA’s implementing regulations, including clarifying the scope of certain exemptions and updating various definitions.
“I applaud the Justice Department’s recent efforts to increase FARA enforcement. At a time when we see democracy literally under Russian attack abroad in Ukraine, and foreign government attempts to influence or undermine our democracy at home, it is important to shine a light on efforts by foreign governments to shape U.S. policymaking.
“But I also think it is important to keep in mind as we consider proposals to enhance FARA’s transparency mechanisms that while hidden efforts by foreign governments to influence U.S. policymaking and the public have a corrupting effect on our democracy, the underlying activities FARA regulates are constitutionally protected.
“That is why Congress, even as war clouds began to gather over Europe in the 1930’s, chose transparency as the means to combat foreign influence in our democracy.
“It is also why I am opposed to proposals to grant the Justice Department the authority to issue civil investigative demands—also known as “CIDs”—in the FARA context. My fear is that such type of administrative subpoena authority—which, by definition, lacks judicial involvement—may be used as an end-run around Fourth Amendment protections and potentially erode other constitutional rights.
“While CID authority always raises civil liberties concerns, this authority is particularly troubling in the FARA context because the statute regulates constitutionally protected activities. Moreover, because FARA lacks robust civil penalties, most recent FARA proceedings have been criminal in nature. As of the publication of the 2016 OIG report, the Department had not sought civil injunctive relief under FARA since 1991.
“These factors, which are particular to the FARA context, taken together, heighten the risk that granting CID authority will erode civil liberties over time.
“Indeed, as we will hear from one of our witnesses today, as it is, non-profit organizations across the political spectrum have raised concerns with FARA’s sweeping scope—which may create unintended consequences and burden constitutionally protected activities Congress arguably sought to exempt from the statute—and it may permit future administrations too much discretion to use FARA’s breadth to selectively investigate or prosecute organizations whose viewpoints the government disfavors.
“Any discussion of how to enhance FARA enforcement and public transparency mechanisms would not be complete without also considering the potential consequences and concerns raised by the non-profit sector.
“Lastly, I would like to express my desire for today’s discussion to remain focused on legal and policy considerations.
“We have already heard from Members about who they think should be investigated for FARA violations. We are not here today to discuss the details of any potential case or individual.
“Instead, it is my hope that, amidst the potential temptation to score partisan political points, it is not lost on us that there appears to be general bipartisan support for FARA, and that there may areas of bipartisan agreement on how to improve the Act. I look forward to hearing from our witnesses on potential avenues for reform.
“With that, I thank Chairman Cohen for holding a hearing on this important subject and I yield back the balance of my time.”