FARA in Focus: What Can Russia's Foreign Agent Law Tell Us About America's?

Abstract

In 2012, the Russian government passed Russia’s first-ever Foreign Agent Law, a key part of Vladimir Putin’s push to limit foreign influence in Russia during his 3rd term as president. American and other western analysts described the law as an attempt to destroy his opposition and stymie civil society; after the law’s passing, many NGOs were forced to close. Interestingly, the Russian government pushed back, arguing that it had modeled the Foreign Agent Law after the American Foreign Agents Registration Act (FARA) passed in 1938. Indeed, on their face the Laws seem similar. Their implementation, however, has differed. While Russia has actively used its Law, the U.S. Department of Justice launched only a single criminal prosecution under the Act from 1990 to 2010. However, since Russian interference in the 2016 American Presidential Election, DOJ prosecutors have turned once again to FARA, and brought more cases between 2016–2019 than they had in the past 50 years combined. As a result, a renewed focus on the Act raises fresh questions about its scope and effects from a civil liberties perspective. Comparing FARA to its Russian counterpart, we see that the Russian law contains significantly more substantive limitations on the functioning of “foreign agents” than does FARA. However, both laws are broad and can sweep in legitimate civil society groups that should not be labeled “foreign agents” in light of the purposes of each Act. Thus, DOJ discretion is the main barrier stopping America from replicating aspects of the negative Russian experience. Given that First Amendment rights are at stake, this reliance on the DOJ is insufficient. With lessons from this comparison in mind, Congress should amend FARA to narrow its breath and clarify its scope.

Keywords: FARA, DOJ, Russia, Foreign Agent

JEL Classification: K30, K33, K42