In a win for government transparency, the Department of Justice (DOJ) has made a key set of foreign lobbying documents, known as informational materials, available online for the first time.
American lobbyists working on behalf of foreign governments or political parties are required to register with the DOJ and provide detailed descriptions of the work they’re doing to influence US policy for their foreign clients. The lobbyists file copies of their contracts, and every six months file reports describing their activities over that time period. All of these documents are publically available online.
But the lobbyists are also required to file any informational materials distributed to two or more people within 48 hours. Informational materials, formerly called political propaganda, are the documents they send to the policymakers they’re trying to influence. These materials include things like draft legislation, speeches, and press releases, and show how the lobbyists, in their own words, attempt to wield influence on behalf of their foreign clients.
Informational materials were previously only available in hard copy at the FARA Registration Unit in Washington, DC, which is only open to the public from 11am to 3pm on weekdays. But the DOJ has now updated its website to make informational materials available online for the very first time, beginning with those filed in 2017.
This is a huge win for government transparency. A 2014 Project On Government Oversight (POGO) report examined the Foreign Agents Registration Act (FARA) and found several loopholes and a pattern of lax enforcement by the DOJ, particularly related to how the agency enforces informational materials requirements. POGO built a database to provide searchable electronic versions of informational materials filed between 2009 and 2012 and recommended the DOJ make the documents electronically available going forward.
POGO is pleased to see the DOJ has done just that. As Sunshine Week puts the spotlight on open government, this is an excellent example of an agency proactively working to increase transparency.
This often-forgotten law has been in the news recently for a number of reasons. In January, President Trump signed an Executive Order that included a lifetime ban for those leaving the US government to engage in any activity that would require them to register with the DOJ under FARA. This was an excellent start toward closing the revolving door between those who leave public service to trade on their expertise for foreign clients, but it doesn’t fully capture all foreign lobbyists.
A loophole allows some lobbyists who are working solely on behalf of a foreign commercial interest, rather than a foreign government or political party, to register under the Lobbying Disclosure Act (LDA) instead of FARA. There is significantly less transparency on lobbying activities conducted under the LDA than there is under FARA. And foreign governmental and commercial interests are not always as distinct from one another as they are in the United States.
Furthermore, just last week it became clear that President Trump’s former National Security Advisor, Michael Flynn, failed to properly register with the DOJ while lobbying for foreign clients during and after the election. Flynn’s firm did register under the LDA and retroactively registered under FARA last week. The FARA registration letter cited an “uncertain standard” as the reason for filing under the LDA instead of FARA. “To eliminate any potential doubt, the Flynn Intel Group therefore is electing to file a registration under FARA, in lieu of its prior LDA registration,” the letter stated.
This confusion demonstrates why the loophole between FARA and the LDA needs to be addressed. A recent DOJ Inspector General report highlighted this exact issue and recommended a formal assessment to determine if legislative changes are required.
In the meantime, POGO applauds the DOJ’s efforts to provide transparency into foreign lobbying activities.