This year has seen a wave of proposed bills in state legislatures across the United States, all aimed at regulating foreign-influenced political activity at the state level. Many of these mirror the Foreign Agents Registration Act (FARA), but there are some with significant deviations. While none of these bills have become law, their emergence indicates a growing trend toward state-level regulation of foreign activity. While legislation varies from state to state, their shared goal is to bring transparency to political and propaganda activity by foreign entities or countries.
FARA, enacted in 1938, is a federal disclosure statute that requires "foreign agents" to register with the Attorney General. Between 1966 and 2015, the Department of Justice (DOJ) has only brought seven criminal prosecutions under FARA. However, since 2016, there has been a surge in prosecutions, including some high-profile cases. Due to FARA's broad disclosure requirements and various exemptions, ambiguity persists regarding the scope of the statute's requirements. This surge of FARA activity has sparked an interest in regulating foreign agent activity on the state level.
State-by-State Overview
Eight states, including Georgia, Arizona, Illinois, Oklahoma, Tennessee, West Virginia, California, and New York introduced a FARA-like or FARA-related bill this year. These bills borrow heavily from FARA, but they are different. The proposed legislation mirrors FARA to varying degrees with common contours. Two common themes are limiting disclosure to countries of concern or not adopting frequently utilized FARA exemptions, such as the commercial exemption, which exempts private activities in furtherance of bona fide trade or commerce of a foreign principal.
In Georgia, Senate Bill 368, which closely resembles FARA, was passed by the legislature but ultimately vetoed by Governor Brian Kemp at the request of the bill's sponsor. The bill would require agents of foreign principals to register with the State Ethics Commission and ban foreign contributions to political campaigns. The bill will likely return to the legislature at the beginning of the next session, where the legislature may vote to override the governor's veto.
In his decision to veto SB 368, Governor Kemp noted that federal law already prohibits foreign nationals from making political contributions. He stated that the bill would result in unintended registration requirements at the state level for agents of foreign principals due to several disclosure exemptions provided under FARA being absent. Consequently, numerous business entities would likely have had to register with Georgia's State Ethics Commission despite being exempt under FARA. For example, SB 368 did not provide an exemption if the foreign agent is already disclosed and reporting activity under FARA or engaged in activities covered by FARA's commercial exemption. Also, unlike FARA, SB 368 lacks a definition for "political activities." Thus, if enacted, foreign agents and principals would be left completely in the dark regarding what types of activities would trigger registration in Georgia.
In Arizona, House Bill 2506 was introduced. This bill would require registration for activities related to "countries of concern," identified as China (including Hong Kong), Cuba, Iran, North Korea, Russia, Saudi Arabia, and Venezuela. The legislature claims this bill seeks to close existing loopholes of FARA that allow "foreign agents to operate unnoticed . . . [and] exert influence on American soil."
Meanwhile, Illinois proposed Senate Bill 3542, which closely tracks FARA with slight modifications. The bill would apply only to foreign agents conducting activities on behalf of foreign principals from countries of concern. The definition of "foreign agent" in the Illinois bill is nearly identical to the federal law but SB 3542 swaps "United States" for "state," referencing Illinois. House Bill 1150 introduced in Oklahoma is also limited to foreign agents acting on behalf of principals from countries of concern, though only defined as those countries listed by the U.S. Secretary of State as hostile or a Country of Concern. Otherwise, HB 1150 mirrors FARA, including most FARA exemptions. HB 1150 does not include the commercial exemption.
Although ultimately withdrawn, Tennessee's House Bill 1854 similarly replaces "United States" for "state" in the definition of "foreign agent." It also would apply to activities conducted on behalf of countries of concern, which are the same countries listed in Illinois SB 3542, or any other country that the governor of Tennessee deems concerning, moving away from reliance on the U.S. Secretary of State. Notably, HB 1854 includes a provision for retroactive filing for the past ten years for all foreign agents from countries of concern and requires higher education institutions to establish policies for anyone employed or receiving funds from the school who is found in violation of this legislation.
In West Virginia, House Bill 5043 alters the scope of the definition of "foreign agent" to include those acting "within the United States, and specifically within West Virginia." As it stands, HB 5043 would lead to an ambiguous reporting threshold—what does it mean to be active "specifically" in West Virginia?
Lastly, California introduced Senate Bill 1151 that requires foreign agents to file periodic reports with the California Secretary of State's Office at the same frequency as lobbyists. New York introduced Assembly Bill A4492 which did not include any FARA-like disclosure provision but prohibits anyone who has previously been a foreign agent from holding public office or political party positions.
Although none of these bills have passed yet, the flurry of activity at the state level this year could signal a shift in focus toward regulating foreign agents and foreign principals in the future. However, state legislation is inconsistent and could create multiple complex and uncertain regulatory schemes for disclosing foreign agent activity across all fifty states.
Co-authored with Katherine Kyriakoudes who is a summer associate with the firm.
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