The Foreign Agent Registration Act and U.S. Nonprofits Working Internationally

In June 2018, we saw concerning new developments related to the use of the Foreign Agent Registration Act (FARA) in targeting U.S. non-profits that also work internationally. The House Committee on Natural Resources sent a letter to the Natural Resources Defense Council (NRDC) as part of an investigation into the “potential manipulation of tax-exempt 501(c) organizations by foreign entities to influence U.S. environmental and natural resource policy.”

In the full June 5th letter, Committee Chairman Representative Rob Bishop (R-UT) and Representative Bruce Westerman (R-AR) asserted that NRDC may need to register under FARA for a range of reasons These reasons include some particularly worrisome claims that could apply to many U.S. foundations working internationally, including that:

• NRDC’s ability to work in China is dependent on the goodwill of the Chinese government, since NRDC would need to register as a Foreign NGO in China). This overview from ChinaFile’s NGO project is a good analysis of this claim.
• NRDC regularly engages Chinese officials in conversations about their work.
• NRDC has implemented different advocacy approaches when engaging the U.S. vs. the Chinese government and has supposedly criticized U.S. policies on the environment while praising China’s efforts to comply with climate change commitments.

We are continuing to work closely with a loose coalition of civil society networks, led by the International Center for Not-for-Profit Law and Interaction, on proposed revisions to FARA. Last month, the Council joined InterAction’s sign-on letter with 45 other non-profit organizations about the impact of FARA on the civil society sector.

We fear that without tightening the language of who should register under FARA, there could be significant unintended impacts on U.S. non-profits, including foundations, if DOJ enforcement is strengthened. This might impact U.S. non-profits who engage globally in a variety of ways, from having a non-U.S. board member or receiving funding from overseas, to working closely with non-U.S. partners or, similar to NRDC, just working with governments abroad on global programs.

We will be watching how the situation with NDRC around FARA develops and encourage U.S. foundations engaged globally to read more about concerns on FARA’s impact on American non-profits:

• Los Angeles Times: "Is that environmental group a pawn of Beijing? Nonprofits wary of being branded 'foreign agents'"
• Non-Profit Times: "Nonprofits Face Foreign Agent Tag"
• Just Security: "The Unintended Foreign Agents"
• ICNL: "Danger of FARA for Civil Society in the U.S. and Abroad"
• InterAction: "FARA FAQs"