Foreign interests put up more than $1 of every $7 spent lobbying the federal government in 2012, yet oversight by the Justice Department remains “lax,” according to a watchdog report to be released Tuesday.
While complaints about compliance and enforcement of the Foreign Agents Registration Act (FARA) is nothing new among professionals in that part of the K Street space, the Project On Government Oversight (POGO) plans to issue a paper that details the law’s shortcomings and the prevalence of lobbyists flouting it. The report presses both Congress and the Justice Department to correct these problems.
“Around the edges there’s a lot of loosey-goosey stuff going on," said former Rep. Toby Moffett (D-Conn.), a senior adviser at law firm Mayer Brown, who also had his own lobby shop. “People representing foreign interests and not reporting.”
Additionally, roughly half of all the materials required under FARA were filed to regulators late – in some cases, months after they are due, according to an examination of documents in 2012.
This is “a failure that prevents journalists and watchdogs from scrutinizing the lobbying activities while foreign interests are trying to influence U.S. policy,” POGO says in the report, which reviewed filings from 2007 through 2012.
“We found a pattern of lax enforcement of FARA requirements by the Justice Department. We found that the Justice Department office responsible for administering the law is a record-keeping mess. And we found loopholes in the law that often makes it difficult if not impossible for the government to police compliance or to discipline lobbyists who fail to comply.”
Congress passed FARA in 1938 to ensure that Nazi Germany was not trying to sway U.S. policy. Reporting requirements under the law are more stringent than those for domestic lobbying, governed under the Lobbying Disclosure Act (LDA).
Lobbyists for foreign entities must submit documents – including copies of the contract, “informational materials,” and draft legislation or talking points – to DOJ if two or more people are expected to see them. The documents have to be submitted within 48 hours of sending them, and new contracts must be registered within 10 days of signing them.
In the case of 26 percent of the FARA documents that POGO examined from 2012, it was impossible to tell if they were in compliance with the law. For example, some the materials were not date-stamped to show that they had been issued to policymakers or the media 48 hours before being submitted to the Justice Department.
The law provides a decent amount of “personal interpretation” about what triggers a registration, the report says.
Loopholes range from lobbyists who are “promoting policies that are not intended to conflict with any existing U.S. domestic or foreign policies,” if the informational materials are “’believed’ by them ‘to be truthful and accurate,’” or the lobbyist is representing the “government of a foreign country the defense of which the President deems vital to the defense of the United States.”
These contracts can also be more lucrative than LDA fees, netting firms anywhere from a couple thousand dollars to upwards of $120,000 per month. Some FARA contracts are not specifically focused on lobbying lawmakers, and aim to provide PR services or increase business and tourism to other nations.
“Lobbyists working on behalf of foreign clients occupy a significant, but often overlooked, portion of the U.S. lobbying marketplace,” the POGO report says. Foreign lobbying became a half a billion industry in 2012, making up more than $1 of every $7 spent on registered advocacy that year.
In 2012, South Korea, Japan, and Mexico each spent more on advocacy than all but one interest group, the report found: the U.S. Chamber of Commerce, a group that adds all political spending into its lobbying total.
Among the many examples of foreign influence in the report is The Livingston Group’s representation of Egypt.
Former Rep. Bob Livingston (R-La.) was among a group of lobbyists that represented Egypt before and during the uprising against the Mubarak regime.
About six months before the country’s citizens began protesting in January 2011, Livingston wrote letters to members of Congress and then-Secretary of State Hillary ClintonHillary Diane Rodham ClintonBudowsky: Why GOP donors flock to Manchin and Sinema Countering the ongoing Republican delusion Republicans seem set to win the midterms — unless they defeat themselves MORE in opposition to a bipartisan resolution “supporting democracy, human rights, and civil liberties in Egypt” that called for “political reform” and scolded the regime for its treatment of protestors, journalists and human rights activists.
The resolution is “not conducive to the ongoing, open and frank dialogue on issues related to democracy and human rights undertaken by our Administration and the Egyptian government,” Livingston wrote in one letter, sent during the lame duck session in 2010. Apparent plans to fast-track the resolution were abandoned and it died in committee.
The date-stamps from the FARA office that received those letters, however, were from Jan. 31, 2011 – well after the 48-hour deadline required by law.
“If outside observers had been made aware of The Livingston Group’s efforts and seen the letters, they might have been able to counter the efforts to undermine the legislation. But The Livingston Group did not file the materials on time,” the report says.
Livingston and two other prominent lobbyists – Moffett and Tony Podesta – collectively known as PLM Group represented the Egyptian government from 2008 to 2012.
The Livingston Group responded to the report in a statement to The Hill:
"A proper evaluation of any organization’s compliance with the FARA statute should take into account the totality of the group’s filings. The sheer volume of the Livingston Group’s filings, and the detail they contain, should be enough to suggest to any fair-minded person that every one of them was done in good faith and with the intent to comply fully with the requirements of the FARA statute," the firm said via email. "These standards were maintained throughout the decade-plus the Livingston Group was an active FARA registrant, and we always believed they were recognized as such by the Department of Justice."
POGO notes in its report that enforcement actions are rare when FARA has been violated. The Justice Department notes that “encouraging voluntary compliance” is the “cornerstone” of its foreign lobbying enforcement efforts – simply asking people to file forms.
There are only criminal punishments available for those who violate FARA – while no civil penalties exist – that require a higher burden of proof. POGO recommends that Congress enact civil fines for FARA lawbreakers – a measure that has been attempted by lawmakers in the past, only to stall.
Several members of Congress have expressed concerns about foreign influences and the DOJ's enforcement against them, becoming especially vocal after a story by The New York Times revealed that countries were donating to U.S. thinktanks to lobby on their behalf. Lawmakers inserted a provision into a spending bill that would allocate $1 million for the inspector general to find ways to improve FARA enforcement.
Public relations firm MCSquared worked for the country of Ecuador for a year without registering under FARA – which the firm called “an oversight.” CD Global Strategies helped a human rights official from the embattled West African country of Burkina Faso make the rounds in Washington without registering for months. It was also late announcing its representation of Tongo.
The Canadian province of Alberta hired a former Clinton aide to engage in a PR effort for the Keystone XL pipeline in 2013, though the New York-based firm didn’t register with the Justice Department until earlier this year.
The report also calls into question several campaign contributions from FARA lobbyists made on the same day as meetings had occurred with lawmakers.
From October 2007 to February 2009, POGO found that nine lobbyists representing various foreign interests gave anywhere from $100 to $1,000 to a member on the same day a meeting regarding the foreign client occurred. Some of the lawmakers contacted by the group said that the contributions are coincidental.
“Most of the Congressman’s DC fundraisers—like those of all members—invariably occur on days when Congress is in session, which is also when most meetings take place,” one congressional aide said.
-- This story was updated on Dec. 17 to include a statement from The Livingston Group.