The Associated Press dropped a bombshell on Aug. 17 when it reported that Donald Trump’s campaign chairman—who has since resigned—consulted for a pro-Russian group in the Ukraine in 2012 and helped it connect with US lobbying firms, potentially in order to influence US policy. This revelation illustrates how federal lobbying regulations fail to capture the extent of efforts by foreign interests to influence US policy, as the Project On Government Oversight (POGO) detailed in a 2014 report.
Many of the activities one might assume are covered under a law called the Foreign Agents Registration Act (FARA) are, in fact, not addressed. Although the law is meant to provide transparency on the activities of US lobbyists working on behalf of foreign clients, POGO’s investigation examined thousands of lobbying filings and found a pattern of lax enforcement by the Justice Department, and loopholes in the law and regulations that make it difficult, if not impossible, for the government to police compliance or discipline those who fail to comply.
The AP story details how former Trump campaign chairman Paul Manafort and a business partner had been consultants for the pro-Russian governing party of Ukraine in 2012, and helped two major DC lobbying firms obtain lucrative lobbying contracts to work on behalf of the foreign party. The two firms, the Podesta Group Inc. and Mercury LLC, were paid approximately $2.2 million to advocate for Ukrainian interests in the United States.
“That lobbying included downplaying the necessity of a congressional resolution meant to pressure the Ukrainian leader to release an imprisoned political rival,” the AP reported.
Neither firm reported the work to the Department of Justice, which requires US lobbyists and law firms working on behalf of foreign clients to register and file semi-annual reports on their activities under FARA. Both the Podesta Group and Mercury have been registering their work for other foreign clients for years, and are clearly familiar with how the system works.
Manafort’s business partner, Rick Gates, told the AP their work connecting the Ukrainians with the DC firms was “lawful, and said there was no attempt to circumvent the reporting requirements of the U.S. Foreign Agents Registration Act.”
The AP notes that the firms coordinated on a legal conclusion which determined that, while the Ukrainian group qualified as a foreign client under FARA, disclosure was not required.
This is a good illustration of FARA’s shortcomings and how the law’s loopholes can be exploited. POGO found that exemptions from registering under FARA are wide-ranging and could even allow for a certain amount of personal interpretation.
For example, the law states that lobbyists working on activities that further the trade or commerce of a foreign client are not required to register. Other areas exempt lobbyists from registering if they are providing legal representation for a foreign client or furthering religious, academic, scientific, or artistic pursuits.
But perhaps the most problematic exemption is § 613(f), which can exempt lobbyists from registering if:
1. They represent the “government of a foreign country the defense of which the President deems vital to the defense of the United States”;
2. They are promoting policies that are not intended to conflict with any existing US domestic or foreign policies; and
3. Communications they distribute are “believed” by them “to be truthful and accurate.”
Although these loopholes are wide enough to drive a truck through, it’s unclear if any of these exemptions would apply to Podesta and Mercury’s work simply because we don’t know exactly what they were doing on behalf of the Ukrainian government.
POGO’s report on FARA offered several recommendations to both the Department of Justice and Congress to help address these issues and improve oversight and enforcement of FARA. Though the Justice Department Inspector General is working on a report about the FARA office, no concrete changes have been made and until such steps have been taken there’s no telling how many people may be skirting the law.
Meanwhile, the issue of undue foreign influence is also causing controversy within the Hillary Clinton presidential campaign. The New York Times reports on Aug. 17 that Bill Clinton has announced that “the Clinton Foundation would no longer accept foreign or corporate money and that he would resign from its board should Hillary Clinton win the presidency.”
The news comes after State Department emails were released revealing that foreign donors to the family foundation had contact with senior aides to Hillary Clinton during her time as Secretary of State.