DOJ Updates Rules for Tracking Foreign Government Lobbyists
Published Date: 1/2/2025
Proposed Rule
Summary
The Department of Justice is updating the rules for people and groups who work for foreign interests in the U.S. These changes clarify who needs to register, update key definitions, and modernize the process to keep things clear and fair. If you’re affected, you can share your thoughts by March 3, 2025, and no new fees are mentioned yet.
Analyzed Economic Effects
8 provisions identified: 5 benefits, 3 costs, 0 mixed.
DOJ Keeps Broad 'Agency' Definition
The Department of Justice says it will not adopt the common-law test for "agency" and will keep a broader FARA agency standard that can include persons who act at the "request" or "direction" of a foreign principal. If you are unsure whether your activities make you an agent, the Department points you to the advisory-opinion process at 28 CFR 5.2 for case-specific guidance.
Exemption Applies to Nonprofits and Businesses
DOJ proposes to make clear that the 22 U.S.C. 613(d)(2) exemption can apply to both commercial and noncommercial entities alike, so long as the activities do not serve predominantly a foreign interest. That change is written into the proposed regulatory text at 28 CFR 5.304(c).
Four Exclusions That Block the 613(d)(2) Exemption
The Department proposes four categorical exclusions that would prevent use of the 22 U.S.C. 613(d)(2) exemption: (1) activities intended to benefit the political or public interests of a foreign government or party; (2) activities influenced by a foreign government or political party; (3) activities whose principal beneficiary is a foreign government or political party; and (4) activities supervised, directed, controlled, or substantially financed by a foreign government or political party and that promote that foreign interest.
New Factors To Judge 'Predominant' Interest
When the 613(d)(2) exemption might apply, DOJ proposes a non-exhaustive list of factors to decide if activities serve domestic rather than foreign interests. These include: (1) whether the public and officials already know about the agent–foreign principal relationship; (2) whether activities further a foreign commercial entity more than a domestic one; (3) the degree of foreign influence or financing over domestic non-commercial entities; (4) whether activities concern U.S. laws/policies more relevant to domestic or foreign interests; and (5) the extent of foreign principal influence over the activities.
Remove 'Directly' From 'Directly Promote' Standard
The Department proposes deleting the word "directly" from the regulatory phrase "directly promote" so that exemptions at 22 U.S.C. 613(d)(1) and (d)(2) would exclude activities that "promote" (not only "directly promote") the public or political interests of a foreign government or political party.
No New Narrow Definition for 'Political Consultant'
DOJ considered but is not issuing a new regulation narrowing the definition of "political consultant" to those who conduct "political activities." The Department determined such a narrow regulation would be redundant or inconsistent with the statute and advises unsettled parties to seek advisory opinions.
Advisory Opinions Emphasized for Unclear Cases
The Department repeatedly directs persons who are unsure whether their activities require registration to use the advisory-opinion process in 28 CFR 5.2. The Department says agency-level determinations about agency relationships are fact-intensive and best handled through advisory opinions.
Law-Practice Exemption Under Review for Clarification
Multiple law firms asked DOJ to clarify when activities related to criminal, civil, or agency proceedings are "in the course of" normal legal representation for the 22 U.S.C. 613(g) exemption, and DOJ is considering how to address this in the regulations.
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