The War on ‘Foreign Influence’ Has Become a War on the First Amendment
Go after bribes and espionage, but leave mere speech alone.
Matthew Petti for Reason.com
2024 could be called the Year of FARA. Once an obscure and rarely enforced lobbying regulation, the Foreign Agents Registration Act (FARA) has become the center of several explosive political scandals this year. Last week, the FBI accused Russian agents of funneling $10 millionto unwitting conservative podcasters and indicted a former deputy chief of staff to New York Gov. Kathy Hochul for acting as a Chinese agent.
Earlier this year, Sen. Bob Menendez (D–N.J.) was convicted of taking bribes from Egyptian military intelligence. Congressional Democrats are now looking into whether Egypt did the same to Donald Trump’s campaign. Meanwhile, the authorities have indicted Rep. Henry Cuellar (D–Texas) for taking bribes from a Mexican bank and the Azerbaijani state oil company. And they’re investigating New York City Mayor Eric Adams’ staff for taking campaign money from Turkey, a close ally of Azerbaijan.
All of these cases involved cloak-and-dagger conspiracies, allegedly funneling money to buy off political figures in secret. It’s the kind of thing Americans think of when they hear the term “foreign agent”—and the kind of thing that should probably be illegal. But espionage and deception are not the only activities covered by FARA, and “foreign influence” doesn’t just refer to foreign agents on American soil.
Practically, the question is how to separate Americans being ordered or tricked by a foreign government from Americans doing things of their own accord. Philosophically, the question is whether stamping out “foreign influence” is possible or desirable in a free society—especially one that is so heavily involved in the rest of the world.
Many of the attempts to infiltrate U.S. politics aren’t coming from U.S. rivals. While China, Russia, and Iran have done their fair share of dirty tricks, American allies and partners have spent a lot of effort, both legally and illegally, trying to influence Washington. Many of these attempts come from the Middle East, where U.S. policy is constantly shifting, and where many U.S. partners are at odds with each other.
FARA, passed in 1938 amid fears of Nazi infiltration, requires anyone who conducts “political activities for” or “represents the interests of” a foreign power to register with the Department of Justice. During the Cold War, the U.S. government tried to use the law to cast the writer W. E. B. Du Bois as a Soviet agent for his anti-war positions. After he was acquitted, the Department of Justice took a much more limited approach.
Today, most registered foreign agents are lobbyists, lawyers, and public relations firms working for friendly countries. In 2022 and 2023, registered foreign agents gave $14.3 million in campaign contributions to American politicians, according to a report by the Quincy Institute for Responsible Statecraft, where I used to work as a researcher.
The U.S. government also uses the term “foreign influence” to describe propaganda created abroad and aimed at American audiences, whether or not American agents were involved in making or spreading it. There is a long history of the U.S. government trying to stamp out this kind of propaganda—and an equally long history of rulings that Americans have the First Amendment right to consume whatever media they want.
In fact, the first time the Supreme Court had overruled Congress on First Amendment grounds concerned “foreign influence.” In the 1960s, a law required the postmaster general to screen the mail for “communist political propaganda.” When former American Civil Liberties Union (ACLU) Director Corliss Lamont received a notice that his copy of the Peking Review was being held up by the post office, he sued. (Lamont wasn’t even a subscriber; “I was rather annoyed at getting the postcard,” he later said.) The Supreme Court ruled that trying to withhold any media based on its content, even hostile foreign media, violated Americans’ First Amendment rights.
That hasn’t stopped the U.S. government from using digital-age techniques to keep out foreign media. In 2021, authorities seized the .com domains of several news outlets, affiliated with the Iranian government or falsely accused of affiliation with the Iranian government, claiming that hosting an Iranian website on an American server would violate the economic embargo on Iran. This year, Congress forced the Chinese company ByteDance to divest from the social media platform TikTok over concerns that it could be used for propaganda.
Since 2017, the Department of Justice has also required some foreign news outlets to register as foreign agents. Many civil libertarians are worried that the use of FARA against journalists could lead to “a ‘nightmare scenario,’ where government officials in the US were unhappy with a specific piece of journalism produced by an international outlet and tried to wield FARA to seek retribution,” according to the Columbia Journalism Review.
Leaving aside the First Amendment questions, the effectiveness of foreign propaganda is pretty questionable. During the 2016 election, Russia’s Internet Research Agency reached 126 million Facebook users through fake accounts. Look at the accounts themselves, though, and they turn out to be peddling low-quality content slop in broken English.
Boosting messages written by Americans has been similarly ineffective. The alleged $10 million Russian influence operation broken up last week had been funding a group of B-list political commentators, with a cumulative 16 million views on YouTube. Independent journalist Ken Klippenstein pointed out that his own “dumbass posts” on social media have nearly 30 times as many views.
Russia’s alleged influence network inside America shows the same lack of savvy in dealing with U.S. politics. In 2022, the Department of Justice accused Russian operatives of supporting a one-man Californian secessionist movement, a small black nationalist party, and a cult run by an accused rapist who used to make bizarre videos in Joker makeup. (They brought charges against the black nationalist party and cult leader in 2023.)
In June 2020, The New York Times unveiled an Israeli influence campaign that tried to personally target members of Congress with social media messaging. Again, a closer look revealed something far less scary: Israeli operatives were spamming three congressmen’s replies with heavy-handed propaganda, often written by ChatGPT. The operatives sometimes mixed up which accounts they were supposed to be using, speaking as a “middle-aged Jewish woman” from an account whose profile picture was a black man.
A more effective propaganda technique has been leaking confidential information. In 2016, the Russian intelligence services stole and leakedemails from the Democratic Party servers. This year, Iranian hackers apparently did the same thing to Republican Party emails. Apparently trying to avoid the “mistakes” of 2016, the media has refused to publishthe leaked Republican files.
Of course, breaking into private computer networks is a crime, and journalists should be careful when dealing with stolen documents. But the crusade against “foreign influence” may lead journalists to hide stories that the public has an interest in knowing. In 2020, mainstream media refused to touch and social media networks suppressed reporting on files purportedly found on Hunter Biden’s laptop. Even if the information became public unethically, that doesn’t make it any less valuable.
After all, when mysterious hackers leaked evidence of the Iranian government’s torture and intimidation, foreign media rightfully focused on the government wrongdoing itself, rather than agonizing over whether the hack was a foreign intelligence operation.
Perhaps the most effective means of buying influence are completely legal. FARA has an exemption for “bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts.” That has allowed foreign powers to funnel huge amounts of money into nonprofit policy research institutes, known as “think tanks,” without registering these activities.
Think tankers might object to the idea that foreign funding affects the content of their research. But it’s quite obvious how think tank funding supports the funders’ agendas, especially when think tankers are former or future political leaders.
For example, in 2016, the United Arab Emirates paid $250,000 to the progressive-leaning Center for a New American Security (CNAS) for a private study on weapons export laws. (Michele Flournoy, a retired official from the Obama administration, and Ilan Goldenberg, a future adviser to Kamala Harris, were CNAS’ points of contact with the UAE.) Then CNAS published a public report arguing that it should be easier for the UAE to import drones.
In 2017, convicted pedophile George Nader and Republican operative Elliott Broidy funneled $2.7 million of UAE money into two unwitting neoconservative think tanks, the Foundation for Defense of Democracies (FDD) and the Hudson Institute. Broidy was later convicted of a separate influence-peddling scheme. And in 2022, the Department of Justice opened an investigation into the centrist Brookings Institution’s relationship with Qatar, which had donated many millions of dollars over the years.
Some in the anti-war and noninterventionist camp would like tighter regulation around this type of funding, in order to prevent foreign powers from pulling the U.S. into overseas entanglements. The Quincy Institute wants the Department of Justice to require more detail in FARA disclosures, impose fines for failure to disclose, and enforce FARA on think tanks.
Some civil libertarians, however, believe that cracking down on think tanks would threaten Americans’ ability to engage in charity work—and that FARA is already too expansive. When the Department of Justice started to tighten FARA enforcement on think tanks in late 2021 and early 2022, the ACLU and the libertarian foundation Americans for Prosperity warned that the crackdown could “undermine and chill First Amendment rights to speech and association.”
For example, the Department of Justice required a pro-life organization to register as a foreign agent when it hosted a foreign delegation to the March for Life in Washington and required an environmental organizationto register as a foreign agent because it received money from a Norwegian development fund.
And then there’s the question of when organic American support for foreign causes, which is a clear First Amendment right, bleeds into coordination with foreign powers. The Irish, Armenian, and Israeli nationalist causes historically leaned heavily on American diasporas, sometimes courting controversy.
For example, the American Israel Public Affairs Committee (AIPAC) considers itself a grassroots organization of Americans who support a closer relationship with Israel. However, critics such as Rep. Thomas Massie (R–Ky.) argue that AIPAC should be registered as a foreign agent due to its close adherence to the Israeli government line. Leaked Israeli government emails—themselves probably taken by Iranian hackers—showed that Israeli officials have discussed the possibility that their American supporters were violating FARA.
The debate over Middle Eastern influence became a real-life Spider-Man meme in 2017. Al Jazeera, a TV station funded by the Qatari government, announced that it was going to release a documentary series about Israeli influence operations in America based on hidden camera footage taken by a reporter pretending to be a pro-Israel activist.
The footage includes Israeli Brig. Gen. Sima Vaknin-Gil telling a pro-Israel conference in Washington that “we are a different government working on foreign soil, and we have to be very, very cautious.” The general lays out the different Israeli intelligence gathering “subcampaigns” in America. “This is something that only a country with its resources can do the best. We have FDD—we have others working on this,” she adds, apparently referring to the neoconservative think tank.
At the time, the FDD did not respond to Al Jazeera’s request for comment. After this article was published, an FDD spokesperson told Reason via email that “FDD receives no funds or other support and no instructions from any foreign government.”*
Several members of Congress demanded a FARA investigation into Al Jazeera over the “reports that it infiltrated American 501(c)(3) and (c)(4) nonprofit organizations” and its “record of radical anti-American, anti-Semitic, and anti-Israel broadcasts.” Qatar went into damage control mode. It hired a former staffer for Sen. Ted Cruz (R–Texas) to do outreach to Jewish-American organizations, and the Qatari emir himself reportedly ordered Al Jazeera not to air the documentary, which was leaked to YouTube anyways.
In other words, those members of Congress were accusing Al Jazeera of acting as a foreign agent by accusing the pro-Israel movement and neoconservatives of acting as foreign agents. No one involved in the controversy was against foreign influence in principle, and indeed, Qatar and Israel both found Americans apparently willing to work with a foreign government in a domestic political battle.
A war on “foreign influence” as a concept is likely to be as successful as the war on drugs and the war on terror. Perhaps it makes sense to look at each type of foreign activity separately. Fraud, theft, bribery, and blackmail should be crimes, whether the perpetrators are American or not. Foreign propaganda is probably an unavoidable part of living in a society with free speech, and the best solution to bad speech is more speech.
It would also benefit Washington to look in the mirror. The U.S. government interferes heavily in the politics of different countries around the world. And that’s not just a matter of hypocrisy. U.S. involvement gives the affected countries a direct stake in U.S. politics. After all, swaying the vote of a few members of Congress could help redirect huge amounts of American guns and money. It’s especially true when so much of U.S. national security policy is already made through backroom dealingrather than public debate.
Having a more modest, more transparent, and more carefully targeted foreign policy wouldn’t end all foreign influence. But it couldn’t hurt to try.
As with everything the government does, it is based solely on who is in power and wants to retain that power as to who they pursue.