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New rules target House witnesses

New rules target House witnesses
© Greg Nash

Some witnesses who testify before House panels will have to disclose whether they have been paid by foreign governments under new rules approved in the House last week.

The rule change, which some warn could lead to a chilling effect among potential witnesses, was spurred by a New York Times investigation revealing that some Washington think tanks had lobbied in favor of foreign governments’ interests after receiving grants.

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However, the new provision could extend further, sweeping in any number of consultants or lawyers who have foreign clients and who are currently exempt from foreign lobbying regulations under the Foreign Agents Registration Act (FARA), according political lawyers who advise clients on such matters.

“Conceivably, it’s filling what some people see as a gap in FARA’s registration requirements,” said Joshua Rosenstein, a partner at Sandler, Reiff, Lamb, Rosenstein & Birkenstock.

The new rules come in addition to existing requirements that people acting on behalf of foreign governments in an attempt to influence U.S. policy must register under FARA.

“It doesn’t go as far as FARA in certain respects — it only applies to those who testify — but it’s a way to get additional disclosure without going through the rigors of statutory change,” said Kenneth Gross, the head of the political law practice at Skadden, Arps, Slate, Meagher & Flom. 

“This could chill the testimony of certain people,” he added. “They want to know amounts — they’re asking for specific amounts [of the payments by foreign governments].”

Each committee in the House has its own requirements for witnesses who speak before the panels.  

Individuals are already required to detail any contracts or grants from the federal government — either given to them or their employer — relating to the topic of the hearing. Now that rule extends to payments received from foreign governments in the two years before that person’s testimony.

The change, proposed by Rep. Jackie Speier (D-Calif.), has largely been well received by lawyers and government watchdogs.

“Foreign sources of funding often have just as much influence over the conclusions offered by witnesses as domestic government contracts,” said Craig Holman, a government affairs lobbyist for Public Citizen, in an email.

Think tanks, such as the Atlantic Council, did not object when the rule change was first introduced in September. The Brookings Institution told The Hill it would not oppose the new rules now.

“For more than 30 years, Brookings has publicly released information about its donors, including foreign government donors,” said David Nassar, a vice president of communications at Brookings. “In the past, we have complied with the Truth and Testimony Act, and we are happy to comply with this rule change.”

While Speier’s proposal came with bipartisan support from leaders on the Rules Committee, the version approved in the House last week gives congressional committees some freedom in how they implement it.

The new language requires witnesses to disclose money stemming from a foreign government only if the grant or payment is “related to the subject matter of the hearing,” prompting concern from lawyers — and Speier — that that criteria would be too narrow.

“There are going to be many foreign government grants that are not explicitly tied to particular subject matter,” said Robert Kelner, the chairman of Covington & Burling’s election and political law practice. “There may be some differences in opinion in whether a particular grant relates to the subject matter of the hearing.”

Holman said the rule should be the first of many changes enacted by Congress, given a proliferation of policy groups in Washington.

“We have seen an explosion of think tanks in the United States funded by domestic special interests for the purposes of influencing public policy — in other words, lobbying,” he said. 

The New York Times found that nearly 30 nonprofit research institutions, known as think tanks, have received at least $92 million from 64 foreign governments in the last four years. The newspaper’s numbers come from think tanks that reveal their donors, which means that figure is likely higher.

The research organizations highlighted by the Times — including the Atlantic Council, Brookings and the Center for Strategic and International Studies — all stressed, however, that foreign donors could not influence their research.

Still, experts from think tanks receiving foreign cash each testified before the House Foreign Affairs or Armed Services committees about a dozen times last year, according to a count by Speier’s office.

There is no official count of how many foreign-paid lobbyists, consultants or lawyers appeared before House panels.

“Disclosure in the context of advocacy is a good thing. This [rule] addresses some of the areas where there’s been under-disclosure,” Rosenstein said. “If the rationale is simply disclosure and seeking to undermine undue influence of foreign interests in U.S. policy, those interests may outweigh any potential chilling effect on speech as a legal matter.”