"Foreign agents" under Russia's NGO Law and its US doppelganger
by Ingrid Burke, RAPSI
President Putin signed off on a high-profile bill that will relegate politically active NGOs receiving funding from abroad to a registry of “foreign agents.” Once registered, these NGOs will face heightened scrutiny. They will be required to file regular disclosures with the government and to label all materials disseminated through major channels with their “foreign agent” status.
Responding to critics, Duma legislator and bill co-sponsors Alexander Sidyakin has pointed to the similarities between the law and the Foreign Agents Registration Act (FARA), a similarly worded US statute. In an effort to add depth to public discourse on the law, we have decided to take a look first at the similarities and differences between the law and its purported US counterpart, and then at the direct impact that the law will have on top Russian NGOs.
FARA and the NGO law: a brief comparison
The glaring similarities between these two laws are found in the nearly identical language used to describe certain provisions.” Under both laws, individuals and organizations that meet their respective statutory definitions are designated as “foreign agents.” Both laws are aimed at exposing actors engaged in political activity, and thus the supporters of both claim that the key benefit of each is in its capacity to increase transparency.
Another key similarity is in the hefty criminal sanctions that both laws carry if violated. FARA’s sentencing guidelines provide for a fine of up to $10,000 or five years in prison for its violation. The NGO law’s sanctions are decidedly heftier. Violation of the NGO law can lead to a fine of up to one million rubles ($33,000) or a prison sentence of up to four years. Note, however, that the administrative sanctions and the penalty scheme will be thoroughly reviewed in the Duma’s Fall session
Despite the similar wording of certain provisions of FARA and the NGO law, two key distinctions emerge when comparing the two side by side. First: whereas FARA - in its current form - is geared toward lobbying firms, the NGO law is geared directly and explicitly toward NGOs. Second: whereas under FARA the burden of proof for actions taken under the statute lies with the government, it is unclear who carries the burden of proof under the NGO law.
With regard to the first point, NGOs can theoretically be held to account under FARA if funded by a foreign principle and if failing to meet one of the very broad exemptions. Still, this has been extremely rare in practice. The purpose of the law is to reveal the amount of money paid to lobbyists in order to impact US government policy on behalf of foreign principles. And as discussed above, the exemptions are far-reaching enough to generally weed out organizations that weren’t meant to fall within the law’s scope, such as members of civil society.
If the NGO law was a mirror image of FARA, top Russian NGOs GOLOS and Transparency International Russia (TI-R) would likely fall under the FARA exemption that reaches organizations engaged in “activities not serving predominantly a foreign interest.” To get a sense of the practical implications the law might carry for these NGOs, RAPSI spoke with GOLOS Association Deputy Executive Director Grigory Melkonyants and TI-R Director Elena Panfilova.
Doubts harbored by NGOs
Speaking to the comparison between the NGO law and FARA, Panfilova noted, “We have TI-USA, which is in an absolutely similar position with my organization. It receives domestic funding, it receives corporate funding, and of course… like [TI-R] - they receive funding from abroad from the TI secretariat [and it has not been targeted under the law.]” This owes both to the wording of this specific provision, and to our next point: the burden of proof.
Melkonyants believes that the differences might be even further reaching, speculating that the problem lies in the very attempt to juxtapose a US law with the Russian codes in the first place. He explained, “When copying a law from abroad, [the government] must consider the general population, and the underlying philosophy of the legal system, and the law’s relationship to other laws, and the citizens to whom it will apply. If FARA had been adopted in the form in which it is applied in the US, it would not have affected GOLOS or any other human rights organizations. So Russia’s ‘analog’ of the law has nothing to do with FARA.”
Defending Russia’s national interests
Critics of the law have expressed concern over the term “foreign agent” itself. Many fear that identification as a foreign agent will discredit NGOs at best, or cast them as spies at worst. Sidyakin dismissed these concerns while speaking about the law with RIA Novosti earlier this month, reasoning that, “the idea that ‘foreign agent’ means ‘spy’ is…. a hangover from the Soviet period in which our parents grew up…. “I don’t think younger generations see the expression this way. We should try to get over Cold War terminology. I believe there is nothing insulting in this term.”
Sidyakin went on to explain that the law was drafted in response to attempts to “affect Russian politics.” He specifically called GOLOS out in a parliamentary meeting earlier this month, lambasting the “$2 million given to the organization in 2011 to dirty the Russian authorities.”
Federation Council speaker Valentina Matvienko has voiced her support for the law. She explained in an interview with RIA Novosti that in her view, "the necessity of the law is obvious because any state is obligated to defend its national interests from foreign influence."
Vice-speaker of the State Duma Sergei Zheleznyak explained that there is currently a need for the law because "it is unclear in whose interest and on whose dime these NGOs were operating."
The USDOJ on FARA
The US Department of Justice (USDOJ) National Security Division spokesman Dean Boyd took the time to speak with RAPSI about FARA. Boyd stressed two major points about the law: its utility - as a public disclosure statute - in increasing legislative transparency, and the extent to which it is narrowly tailored to reach only as far as it needs to in order to serve the spirit of the law.
Speaking to the first point, Boyd explained, “The US Foreign Agents Registration Act is a public disclosure statute designed to ensure that the US Government and the people of the United States are informed of the source of information and the identity of persons attempting to influence US public opinion, policy, and laws. It is certainly appropriate for foreign governments and foreign political parties to lobby the United States - as long as they register with the Justice Department and publicly disclose their foreign affiliation with the U.S. government pursuant to FARA.”
Another way to view this point is in terms of transparency. The measure is generally considered to promote transparency by virtue of the fact that it enables the general public to educate itself on the sources of income of powerful lobbies. In other words, the electorate has a right to know if a foreign government or other such entity is spending large amounts of money in the US for the sole purpose of influencing the policies established by their elected officials.
When asked about the effectiveness of the Act toward this end, Dean explained, “We believe FARA has been successful in helping the American public and the US government evaluate the information from and activities of such persons in light of their foreign associations.”
On the second point, Boyd explained that FARA contains enough exemptions to ensure that individuals and organizations targeted under the law reflect the spirit of the law. “For example, diplomats and officials of foreign governments, and their staffs, are exempt if properly recognized by the US State Department. Persons whose activities are of a purely commercial nature or solely of a religious, scholastic, academic, scientific or fine arts nature are exempt,” he explained.
Humanitarian relief efforts are exempt from the law as well. As Boyd noted, “Certain soliciting or collecting of funds to be used for medical aid, or for food and clothing to relieve human suffering are also exempt.”
Foreign lawyers are protected as well. “Lawyers engaged in legal representation of foreign principals in the courts or similar type proceedings, so long as the attorney does not try to influence policy at the behest of his client, are exempt,” he added.
Vagueness issues with the NGO law
Melkonyants and Panfilova are both currently bracing for the NGO law’s impact. GOLOS and TI-R informed us of their respective plans to challenge the law.
Panfilova told us that TI-R is prepared to seek clarification on the meaning of “political activity” under the law once it has been enacted. Besides, “the… law is still pretty vague and [it is] difficult to comprehend what it means to influence public opinion,“ she explained. Finally, Panfilova noted that TI-R is going to ask the Constitutional Cort for clarification: “We are going to the Constitutional Court because it’s not clear to what extent actions will be voluntary and at what point…. actions against those who are not going to get registered voluntarily will start.”
On a whole, Panfilova explained that the law’s biggest problem is a moral one. “It is altogether only a moral problem because I do believe that it’s not right to label an organization which is not a foreign agent [as one]… But it’s all about the dignity of an organization. It’s all about the integrity of the organization and our name. Nothing else. And even signing things [with “foreign agent” status will be] okay.”
GOLOS plans to pursue clarification on the meaning of “political activity” as well, but will seek this information out from the Justice Ministry.
Meanwhile, both NGOs would seek to challenge efforts to compel their adoption of foreign-agent status on the basis of the vague wording of “political activity.” Melkonyants explained that GOLOS does not plan to be included in the registry because, “We are not engaged in political activities.”
When asked whether GOLOS would entertain the idea of foregoing foreign funding in order to escape the reach of the NGO law, Melkonyants answered, "It is entirely possible that GOLOS will have to consider [cutting its receipt of foreign support].... However, such a decision must be made responsibly and assume the presence of domestic sources capable of offering financial support comparable to foreign sources." Reflecting on the law’s practical implications, Melkonyants explained, “At GOLOS people work for an ideal, and money is only a means of doing this work more efficiently. Of course, in the event of funding cuts, the scope of election observation may be affected. However, we will do our best to raise more funds domestically and to be more efficient."
TI-R, however, lacks the option of foregoing foreign funding based on its status as a branch of an international organization. According to Panfilova, “The format in which we exist doesn’t provide us with the possibility not to have any [foreign funding] because we are part of an international organization, and of course [many of our activities are] covered by Transparency International as a big organization…. Love it or leave it, we do have foreign funding and it’s not something we can do anything about.”
In its current form, the law leaves Russian NGOs understandably anxious. The sanctions for its violation are steep, and its wording is fairly misleading. These provisions, however, are not yet set in stone. TI-R and GOLOS’ readiness to seek clarification from Constitutional Court and the Justice Ministry, respectively, may help to reduce the tension. The sanctions may be fleeting, as the Duma plans to revisit them in the Fall.