FARA in Focus: What can Russia's Foreign Agent Law tell us about America's?

• Author: Samuel Rebo
• Position: Serves as a law clerk to the Honorable John R. Padova, U.S. District Judge, Eastern District of Pennsylvania, for the 2021-2022 term
• Pages: 277-325

FARA in Focus: What can Russia’s Foreign Agent

Law tell us about America’s?

Samuel Rebo*

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 third term as president. Western analysts described the law as an

attempt to destroy Putin’s opposition and stymie civil society, and after the

law’s passing, many NGOs were forced to close. The Russian government

pushed back against the criticism, arguing that it had modeled the Foreign

Agent Law after the American Foreign Agents Registration Act (FARA) passed in

1938. On their face, the laws seem similar, but their implementation has differed.

Russia has actively enforced its Foreign Agent Law, whereas the United States—via

the Department of Justice (“DOJ”)—had launched only a single criminal prosecu-

tion under its version of the Act from 1990 to 2010. However, since Russian inter-

ference in the 2016 U.S. presidential election, DOJ prosecutors have once again

turned to FARA, bringing more cases between 2016 and 2019 than 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. While the Russian Foreign

Agent Law contains significantly more substantive limitations on the functioning of

“foreign agents” than FARA does, both laws are nonetheless broad and can sweep

in legitimate civil society groups that should not be labeled “foreign agents.” DOJ

discretion is the main barrier stopping America from replicating aspects of the neg-

ative Russian experience; this reliance on discretion fails to provide sufficient pro-

tection of the First Amendment rights at stake. This paper will propose that, given

the recent resurgence in FARA’s use, Congress should amend FARA to narrow its

breadth and clarify its scope to avoid violation of civil liberties.

* Samuel Rebo serves as a law clerk to the Honorable John R. Padova, U.S. District Judge, Eastern

District of Pennsylvania, for the 2021-2022 term. He formerly served as Editor-in-Chief of the Harvard

National Security Journal, Volume 12. He specializes in US-Russia relations, having previously worked

at the Eurasia Group political risk consultancy in Washington, DC, and as a full-time Research Assistant

to former Ambassador to Russia Michael McFaul at Stanford University. He holds a J.D. from Harvard

Law School and a B.A. from Stanford University in International Relations. He would like to thank

Professor Jack Goldsmith, Dustin Lewis, Scott Goldner, and Cornelia Brown for their edits and help

with previous manuscripts. He also thanks the editors of the Journal of National Security Law and Policy

for their excellent assistance and thoughtful contributions to the piece. Many relevant events, including

the DOJ publishing a notice of proposed rulemaking on FARA and the Russian Supreme Court ordering

Memorial (one of Russia’s oldest NGOs) to shut down over alleged RFAL violations, took place directly

prior to this article’s publication. Although these events could not be fully incorporated into the article,

they highlight the relevance of the "foreign agent" debate in both countries. © 2021, Samuel Rebo.

277

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

I. HISTORY AND CURRENT IMPLEMENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . 283

A. The Russian Foreign Agent Law . . . . . . . . . . . . . . . . . . . . . . 283

1. History of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

2. Implementation: How the Russian Foreign Agent Law

Stymies Dissent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

B. The Foreign Agents Registration Act . . . . . . . . . . . . . . . . . . . 292

1. History of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

2. Current Enforcement and Pressures on FARA . . . . . . . . 296

II. COMPARING THE RUSSIAN AND AMERICAN FOREIGN AGENT LAWS . . . . . . 301

A. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

1. Domestic Parties Covered . . . . . . . . . . . . . . . . . . . . . . . 301

2. Activities Covered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

3. Foreign Nexus Required . . . . . . . . . . . . . . . . . . . . . . . . . 306

B. Registration and Maintenance Requirements . . . . . . . . . . . . . 309

1. Requirements Upon Registration . . . . . . . . . . . . . . . . . . 309

2. Maintenance Requirements. . . . . . . . . . . . . . . . . . . . . . . 310

C. Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

D. Summary of the Laws’ Similarities and Differences . . . . . . . . 313

1. Similarities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

2. Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

III. ANALYSIS: FARA’S STRENGTHS AND WEAKNESSES . . . . . . . . . . . . . . . . . 315

A. Takeaway: Russia’s Law Exposes FARA’s Risks . . . . . . . . . . 315

1. FARA Protects Civil Liberties Better Than RFAL . . . . . . 315

2. Yet, Both Laws Are Overbroad . . . . . . . . . . . . . . . . . . . . 316

3. Both Laws Stigmatize “Foreign Agents”. . . . . . . . . . . . . 317

4. FARA’s First Amendment Implications . . . . . . . . . . . . . . 317

5. Rebutting Counterarguments . . . . . . . . . . . . . . . . . . . . . 321

B. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

INTRODUCTION

December 2011 bore witness to Russia’s largest protests since the fall of the

Soviet Union. After allegations of fraud marred the 2011 elections for the federal

legislature (Duma), up to 100,000 people filled Moscow’s streets to demand fair

elections.

1

Despite the protest’s large numbers, then-Prime Minister Putin saw

the United States’ hand behind them, claiming that “[Hilary Clinton] set the tone

for some opposition activists, gave them a signal, they heard this signal and

1. Ellen Barry, Rally Defying Putin’s Party Draws Tens of Thousands, N.Y. Times (Dec. 10, 2011),

https://perma.cc/QNR6-SCA5.

278 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:277

started active work.”

2

In response, Russia’s legislature soon passed the Foreign

Agent Law (“RFAL”),

3

In addition to imposing audit requirements, RFAL la-

beled NGOs as foreign agents, a moniker in Russia synonymous with “spy.”

4

However, Russia did not develop RFAL from a blank slate; rather, Duma

members stated that they based their law on the United States’ Foreign Agents

Registration Act (FARA), originally passed in 1938.

5

Indeed, the Acts bear simi-

larities: both mandate that foreign agents register with law enforcement, subject

them to audit requirements, and require them to mark all publications with a “for-

eign agent” stamp.

6

While no scholar has conducted an in-depth analysis of the

laws’ similarities and differences, those who have compared them, at least super-

ficially, have reached different conclusions on their resemblance.

7

No matter the laws’ similarities on paper, in practice they have functioned dif-

ferently. Russia has actively enforced its law, using it as a political tool to shut

down domestically-operated NGOs with opposition views.

8

For example,

Russia’s Ministry of Justice first targeted for registration “Golos,” one of

Russia’s few independent election watchdogs, and one intimately connected to

2. Steve Gutterman & Gleb Bryanski, Putin says U.S. stoked Russian protests, REUTERS (Dec. 8,

2011), https://perma.cc/9YYD-3AVX.

3. Federal’nyi Zakon RF “O vnesenii izmenenii v otdel’nye zakonodatel’nye akty Rossiiskoi

Federacii v chasti regulirovania deatel’nosti nekommercheskih organizacii, vypolnjayushhih funkcii

‘inostrannovo agenta’” [Federal Law “On changes to individual legal acts of the Russian Federation in

the regulation of activities of non-commercial organizations performing the functions of a ‘foreign

agent’”], SOBRANIE ZAKONODATEL’STVA ROSSIISKOI FEDERATSII [SZ RF] [Russian Federation

Collection of Legislation] 2012, No. 30, Item 4172 [hereinafter 2012 Foreign Agent Law]. While this

article will discuss the Foreign Agent Law as if it were one cohesive law, the current “Foreign Agent

Law” is actually a collection of multiple amendments passed to multiple different Acts. See Callahan,

infra note 7, at 1227. Thus, this paper will consider all amendments to Russian laws that affect the status

of “foreign agents” as components of the current “Foreign Agent Law.” To not do so would narrow the

scope of this paper and result in a descriptive analysis not reflective of the true experiences of “foreign

agents” in Russia.

4. Jacqueline Vade de Velde, The “Foreign Agent Problem”: An International Legal Solution to

Domestic Restrictions on Non-Governmental Organizations, 40 CARDOZO L. REV. 687, 701 (2018).

5. 22 U.S.C. §§ 611–621 (2020); Vade de Velde, supra note 4, at 701. One should also note that

Russia is not the only country to claim to have copied FARA: “Hungary, Ukraine, and Israel all cited

FARA in passing legislation requiring foreign civil society organizations to register with the

government.” Ellerbeck & Asher-Schapiro, infra note 144. In turn, many countries copied Russia’s Act,

specifically: “Azerbaijan, Kyrgyzstan, Kazakhstan, Tajikistan, Belarus, and Uzbekistan.” Vade de

Velde, supra note 4, at 703.

6. 22 U.S.C. §§ 612, 614; NGO Law, infra note 28, arts 13.1(9), 24(1), 32.

7. See, e.g., Alexandra V. Orlova, “Foreign Agents,” Sovereignty, and Political Pluralism: How the

Russian Foreign Agents Law is Shaping Civil Society, 7 PENN. ST. J.L. & INT’L AFF. 382, 410–12 (2019)

(arguing that the laws are different due to FARA’s narrower “agency” requirement and scope, which,

Orlova claims, predominantly applies to “lobbying, consulting, and advertising”); Thomas M. Callahan,

Cauldron of Unwisdom: The Legislative Offensive on Insidious Foreign Influence in the Third Term of

President Vladimir V. Putin, and ICCPR Recourse for Affected Civil Advocates, 38 FORDHAM INT’L L.J.

1219, 1227 (2015) (“In language and spirit, the Foreign Agent Law mirrors a 1938 US Statute called the

Foreign Agents Registration Act.”) (emphasis added).

8. See generally COUNCIL OF EUROPE COMMISSIONER FOR HUMAN RIGHTS, THIRD PARTY

INTERVENTION BY THE COUNCIL OF EUROPE COMM’R FOR HUM. RTS. ¶¶ 19–23 (2017) (discussing

enforcement practices).

2022] FOREIGN AGENT LAWS: RUSSIA & AMERICA 279