New Foreign Lobbying Disclosure Rules Approved for DOJ Release

The Biden administration is set to unveil a long-anticipated regulatory update to foreign lobbying transparency law, a proposal likely to have major implications for prominent political figures and lawyers who’ve encountered heightened enforcement.

The White House regulatory review office has cleared the proposed rule for release, the final step before publication, a website update showed Friday. A spokesman for the Justice Department’s National Security Division, which wrote the proposal, didn’t immediately respond to a request for comment on timing, but previously the conclusion of this review process leads to a public release within hours or several days.

White collar defense lawyers, lobbyists, nonprofits, and multinational companies and executives have been increasingly scrutinized in recent years over their obligations under the Foreign Agents Registration Act to disclose US advocacy on behalf of international interests.

Ever since DOJ said it was developing the regulatory rewrite in 2021, they’ve been awaiting the proposal for possible clarity of an outdated statute, while bracing for the narrowing of filing carveouts. DOJ’s projected timeline for its release has been delayed multiple times, while lawyers have been debating how a potentially expansive regulatory interpretation may be legally vulnerable since it could require an act of Congress.

Even before the US Supreme Court’s decision last month to overturn the judicial test that gave agencies the ability to interpret statutory ambiguities, private lawyers had been discussing its ripeness for a legal challenge. The department’s foreign agents rulemaking is intended specifically to clarify ambiguous aspects of the 1938 disclosure law, following failed efforts to do so in Congress.

Concerns in the business community of new mandates increased in December when a DOJ official previewed the upcoming proposal at a legal conference. Her remarks prompted lawyers to warn clients—particularly US subsidiaries of overseas companies—that the rule may force more companies to begin registering as “foreign agents” and file detailed public reports.

Once the rule is published, a public comment period will commence. This will allow the growing pool of lawyers specializing in FARA defense to provide input that could influence DOJ’s crafting of a final version.