To Register or Not to Register: FARA’s Growing Threat to the Non-profit Sector

Adrianna Giuliani

Can printing a banner make someone a foreign agent? In 2019, a Pennsylvania church asked the Department of Justice (“DOJ”) this exact question.[1] If the Church, as originally planned, included an international foundation’s logo on the banner and allowed members of the foundation to carry the banner, then the Church would become an agent of the international foundation.[2]  As an agent, the Church would be required to register under the Foreign Agents Registration Act (“FARA”) despite the fact that the banner was set to be printed and carried in the United States.[3]

While registration may sound like little more than filing paperwork, in reality, registering as an agent under FARA can be expensive and burdensome. In addition to the $305 filing fee, those filing as agents under FARA must make extensive disclosures to the DOJ.[4] These disclosures span from handing over the names, addresses, and nationality of officers and everyone who does the work of an officer, to disclosing in detail the nature of all oral agreements and potential acts the agent might take on behalf of the principal.[5]  It is also a continuing responsibility; every six months, agents must file supplemental statements, which cost $305 per foreign principal the agent has a relationship with.[6] 

Many non-profits have had similar, or worse, experiences with FARA’s registration requirements. Since 2018, many environmental non-profits have faced threats from Congress regarding their lack of registration under FARA.[7] In letters from the House Committee on Natural Resources, Congress stated that non-profits’ attempts to ban gas stoves,[8] prevent the relocation of a military base to protect an endangered species,[9] and “collu[de] with Biden administration”[10] could potentially make them agents of a foreign principal. The threats and confusion around who should register under FARA show no signs of stopping; in September 2025, President Trump instructed the National Joint Terrorism Task Force to ramp up FARA investigations.[11] FARA’s overly broad language, which has facilitated confusion and enforcement against domestic non-profit organizations, is a far cry from FARA’s initial purpose and has the potential to hinder the work of many non-profit organizations across the United States.

Congress passed FARA just prior to World War II to stop Axis-power propaganda from flooding the United States.[12] Originally, Congress intended FARA to be an informational tool.[13] By tracking and disseminating the names of foreign agents attempting influence American politics through propaganda, Congress hoped to reduce their power of persuasion.[14] While FARA’s initial iteration remained faithful to this purpose, its definitions of “agent” and “foreign principal” also possessed broad language that has been highly criticized over time.[15] Today, the definitions are so broad that “nearly anyone who represents the political or public-relations interests of a foreign principal in the United States is covered by FARA.”[16] For example, an agent, in part, is someone who acts at the “order, request, or under the direction and control [] of a foreign principal.”[17] By this definition, if an Australian non-profit working to end animal cruelty asks a Los Angeles based non-profit with the same mission to include their graphic on best practices for animal shelters in their joint awareness campaign, the Los Angeles non-profit would likely be acting under the “direction and control” of the Australian non-profit, a foreign principal.[18] Because they are also distributing a foreign principal’s materials, the Los Angeles non-profit would also likely be a “publicity agent” of a foreign principal and therefore required to register under FARA.[19]

Attempts to clarify the definitions across different branches of government are sparse, and when they do appear, often make matters more confusing. For example, in Attorney General v. Irish Northern Aid Committee, the Second Circuit, amid fears that the definition of agent would “sweep within the statute’s scope many forms of conduct that Congress did not intend to regulate,” attempted to clarify FARA.[20] Specifically, the court stated that “a [foreign principal’s] general plea for political or financial support,” would not qualify those who provided aid as agents.[21] However, if a foreign principal provided “more specific instructions or a specific course of conduct requested to be followed, those who respond to the request may be found as agents under the Act.”[22] The Second Circuit also provided an example: all Americans who sent money, food, and clothing to Italian earthquake victims at the request of the Italian government would not be required to register as agents of a foreign principal under FARA.[23]

The court’s guidance in Irish Northern Aid Committee left more questions than answers.[24] If a small non-profit in the United States focused on disaster relief had sent specific items to assist Italians after the earthquake at the request of the Italian government, would they have to register under FARA? Since foreign principals can also be foreign non-profits, if an Italian non-profit had instead asked the same American non-profit to send supplies, would the American non-profit have to register?[25] If so, such a requirement would represent a stark departure from FARA’s initial mission to track “subversive” propaganda.[26]

Like the Second Circuit’s opinion in Irish Northern Aid Committee, the DOJ’s conflicting advisory opinions make it difficult for non-profits to decide whether to register. For example, when comparing two advisory opinions, conflict exists between what the DOJ considers a “political activity” versus a religious exemption.[27] In one advisory opinion, engaging with American reporters about religious intolerance was a political activity, did not fall under the religious exemption, and therefore required registration under FARA.[28] However, in a second advisory opinion, an entity distributing diplomatic toolkits at an event hosted by a foreign-based non-profit religious organization with American journalists present did not qualify as a political activity, received a religious exemption, and therefore did not require FARA registration.[29] Regardless of whether the entities in either case should have been required to register, the inconsistency generates confusion for non-profits around which activities require registration.[30]

The consequences for non-profits that do not to register when the DOJ decides they should have are not small. Those that willfully do not register under FARA could face thousands of dollars in fines or years in prison.[31] The only other alternative is to register, which, as mentioned above, can be expensive and onerous. At a time where “47% of nonprofits are inadequately funded to implement their programs and services,” being forced to comply with FARA or being punished for failure to do so could be detrimental.[32]

It is time for Congress to fix FARA’s overbreadth so that the statute fulfills its original purpose and does not interfere with the work of domestic non-profit organizations. Congress can accomplish this goal by limiting the definition of foreign principal to “foreign governments, or political parties, or those acting on their behalf”[33] so that domestic non-profits are not punished for collaborating with international non-profits. Additionally, Congress could create “create additional or broader exemptions,”[34] to give the DOJ less discretion in deciding which non-profit activities qualify for an exemption. Hopefully, with these changes, the answer to the question, “can printing a banner make someone a foreign agent,” will finally be no.

[1] Request for Advisory Opinion Pursuant to 28 C.F.R. § 5.2, Op. FARA Unit, Dep’t. of Just., 1 (Nov. 19, 2019).

[2] Id. at 2–3.

[3] Id.

[4] 28 C.F.R. § 5.5 (2025).

[5] 28 U.S.C.A. § 612(a)(2), (4)

[6] 28 U.S.C.A. § 612(b); 28 C.F.R. § 5.5 (2025).

[7] See Letter from Rob Bishop, Chairman, House Comm. on Nat. Res., and Bruce Westerman, Chairman, Subcomm. on Oversight and Investigations, to Gene Karpinski, Pres. of the League of Conservation Voters (October 30, 2023) (on file with author); Letter from Ted Cruz, Ranking Member, Comm. on Com., Sci., and Transp. and James Comer, Chairman, Comm. on Oversight and Accountability, to Merrick Garland, Att’y Gen. (August 3 , 2023) (on file with author) [hereinafter Cruz Letter]; Letter from Rob Bishop, Chairman, House Comm. on Nat. Res., and Bruce Westerman, Chairman, Subcomm. on Oversight and Investigations, to Abigail Dillen, Pres. Of Earthjustice.  (October 8, 2018) (on file with author); Letter from Rob Bishop, Chairman, House Comm. on Nat. Res., and Bruce Westerman, Chairman, Subcomm. on Oversight and Investigations, to Kieran Suckling, Exec. Dir., Ctr. for Biological Diversity, Inc. (June 20, 2018) [hereinafter CBD Letter] (on file with author).

[8] Cruz Letter, supra note 7.

[9] CBD Letter, supra note 7.

[10] Cruz Letter, supra note 7.

[11] Countering Domestic Terrorism and Organized Political Violence, The White House (Sep. 25, 2025), https://www.whitehouse.gov/presidential-actions/2025/09/countering-domestic-terrorism-and-organized-political-violence/ [https://perma.cc/MPK8-YJ6F].

[12] Enhancing the Foreign Agents Registration Act of 1938: Hearing Before the H. Comm. on the Judiciary S. Comm. on the Const., C.R., and C.L., 117th Cong. 1 (2022) (statement of Jacob R. Straus, Specialist on the Congress); Jacob R. Straus, Cong. Rsch. Serv., IF10499, Foreign Agents Registration Act (FARA): An Overview (2024).

[13] H. Rept. No. 1381, 75th Cong. 1st Sess., July 28, 1937.

[14] See id. (stating that the committee believes the “spotlight of pitiless publicity will serve as a deterrent to the spread of pernicious propaganda”).

[15] See, e.g., Nick Robinson, “Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency, 69 Duke L. J. 1075, 1096 (2020) (stating that FARA has a “current reputation for being notoriously vague and sweeping”).

[16] Att’y Gen. v. Wynn, 636 F. Supp. 3d 96, 98 (D.D.C. 2022).

[17] 22 U.S.C.A § 611(c)(1)

[18] Id.

[19] Id. § 611(h).

[20] Att’y Gen. v. Irish N. Aid Comm., 668 F.2d 159, 161 (2nd Cir. 1982).

[21] Id. 161–62 (citation modified).

[22] Id. at 162.

[23] Id. at 161.

[24] Id.

[25] 22 U.S.C.A. § 611(b)(2).

[26] See supra note 12.

[27] 22 U.S.C.A § 611(c)(1)(i).

[28] Request for Advisory Opinion Pursuant to 28 C.F.R. § 5.2, Op. FARA Unit, Dep’t. of Just., 1, 5 (Feb. 29, 2024).

[29] Request for Advisory Opinion Pursuant to 28 C.F.R. § 5.2, Op. FARA Unit, Dep’t. of Just., 1, 2 (July 7, 2023).

[30] Robinson, supra note 12, at 1084.

[31] 22 U.S.C.A. § 618(a)(2).

[32]Annual Report on the State of Nonprofits: Rising to the Moment in Evolving Times, Forvis Mazar https://resources.forvismazars.us/rs/932-BAC-700/images/2025%20Annual%20Report%20State%20of%20the%20Nonprofit%20Sector.pdf [https://perma.cc/U53W-9KJT] (last visited January 17, 2025).

[33] Robinson, supra note 12, at 1146.

[34] Id.