DOJ's FARA headscratchers

By Caitlin Oprysko

With Daniel Lippman 

DOJ’S FARA HEADSCRATCHERS: The Justice Department’s FARA Unit released its latest batch of advisory opinions late last week, several of which had experts who advise clients on the foreign agent law scratching their heads.

— In one of the opinions, DOJ determined that the company behind an unidentified digital software platform would be obligated to register under FARA as part of a proposed agreement with an agency of a foreign government to provide the foreign agency with a profile on its platform. The profile, which the agency could then maintain, would be visible only to other s, with the option to pay a different rate for “additional tailored support.”

— The department argued in its February letter that by providing such services, the platform “would constitute an information-service employee and a publicity agent” of the foreign agency under FARA, and thus be required to register. DOJ rejected the company’s suggestion that its services might qualify for the FARA exception for activities carried out on behalf of a foreign principal in furtherance of “bona fide trade or commerce” or that don’t predominantly serve a foreign interest.

— “I do think that it has the possibility to have wide-ranging ramifications for any company which is hired simply to distribute content, you know, whether or not that company has a specific agreement with the foreign government beyond its regular terms of use,” said Josh Rosenstein, an attorney at Sandler Reiff Lamb Rosenstein & Birkenstock who advises clients on FARA compliance.

— Matt Sanderson, an attorney with Caplin & Drysdale and co-chair of the American Bar Association’s FARA task force, told PI that he imagines DOJ would have provided a fuller analysis if the advisory opinion was meant to have such broad implications as suddenly requiring the Twitters of the world to register as foreign agents for allowing a foreign government to create a profile.

— Still, he added, “I think social media platforms and other internet platforms with s that would include foreign governments need to be on notice that this could be a trend rather than a blip in the department … looking at platforms more closely” — though caveats apply.

— More confounding in the latest release of advisory opinions, both Rosenstein and Sanderson said, was how the digital platform opinion appeared to be contradicted by another advisory opinion issued just a month earlier. In that opinion, the department determined that another unidentified U.S. company did not need to register for its work acting as an intermediary to arrange paid speeches for a foreign politician in “a private capacity and not as a representative” of the politician’s government or political party.

— Further, the department determined that because the company contends its work is to merely market the foreign politician to prospective audiences and that it “has not agreed to distribute a foreign principal’s message” nor does it have any “insight into or ability to affect the content” of the politician’s speeches, the company’s services would be considered nonpolitical under the statute and qualify for the trade or commerce exemption.

— “I thought that was an interesting contrast,” Rosenstein said. “If you're a platform, you may also … be in a similar position where you have no idea, you're just letting people subscribe, write and sign up to post their own content, but you're not going to necessarily always get that content or know what they're going to post.”

— Sanderson, meanwhile, pointed to DOJ’s 2019 lawsuit against RM Broadcasting seeking to force the U.S.-based company to register for re-broadcasting Russian state-owned media in the U.S. Both Sanderson and Rosenstein argued that while the frequent guidance and insight into how the DOJ is viewing FARA is more helpful than getting nothing, they also underscore how fact-specific and vague the statute is.

— “These advisory opinions really drive home the point that I've always made to clients, which is: This is still a developing and uncertain area of the law,” Sanderson told PI. “Even though this has been around for 80-plus years, there are uncertainties built into the vague and ambiguous nature of the statute.”

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Happy Tuesday and welcome to PI. Send lobbying tips and gossip: coprysko@politico.com. And be sure to follow me on Twitter: @caitlinoprysko.

FIRST IN PI — NARRATIVE GROWS RESEARCH TEAM: Strategic comms firm Narrative Strategies has bolstered its in-house research team with several new additions, including bringing on Heather Owens as a senior director to lead the expanded research operation.

— Owens joins from the Democratic Governors Association, whose research team she helped stand up back in 2015. She’s led DGA’s research department ever since, filing more than 2,000 records requests last cycle as Democrats have sought to claw back governors’ mansions across the country. She previously led research for the independent expenditure arm of EMILY’s List and is a DCCC alum.

—The firm also added Katherine Bukowski and Sukanya Walhekar as senior associates and Tim Andre as strategic comms associate. Bukowski was most recently a research analyst at the GOP polling firm Public Opinion Strategies, while Walhekar was previously with Hamilton Place Strategies (now Penta Group). Andre was previously at the GOP consulting firm Targeted Victory.

HOW THE FARM BILL STANDS TO BENEFIT ITS AUTHORS: “Members of Congress say they want to help small farmers. In some cases, that includes themselves,” POLITICO’s Garrett Downs writes of a rarely examined conflict of interest that’s becoming relevant again while lawmakers begin crafting their trillion-dollar farm bill.

— “About two dozen members of Congress are also farmers, a profession long revered in American culture and politics,” and multiple lawmakers — including those who sit on the House committee that write the agriculture policy legislation — have previously benefitted or stand to benefit from some of the hundreds of billions of dollars in subsidies about to be doled out.

— “Unlike lawmakers’ stock trading, which some members have pushed to ban, the agricultural incentives have received little scrutiny from colleagues on Capitol Hill — something one watchdog group chalks up to farmers’ political cachet.”

— “‘We don’t treat any other industries like agriculture,’ said Scott Faber, senior vice president of government affairs at the Environmental Working Group, a left-leaning advocacy group that tracks Agriculture Committee members’ farm subsidies. … The group wants to stop federal farm subsidies intended for farmers from flowing to lawmakers. And some liberals in Congress agree,” even though other lawmakers — and government ethics experts — are divided on the matter.

— Several lawmakers who’ve received farm subsidies defended the practice, contending that “unlike lawmakers who come from other occupations, farmers can’t easily put their businesses on ice while they serve in Washington” or pointing to participation in subsidy programs as almost necessary to compete in the industry and while providing first-hand experience crucial for crafting good policy.

FIRST IN PI — K&L ADDS HOYER AIDE: K&L Gates has added Jamie Jackson as a partner, Thomas “Finch” Fulton as a government affairs adviser and Len Bickwit as an of counsel in the firm’s public policy and law practice. Jackson most recently served as senior counsel to former House Majority Leader Steny Hoyer, Fulton was most recently vice president of policy and strategy at autonomous trucking technology company Locomation, and Bickwit most recently spent the past four decades with Miller & Chevalier Chartered.

FORGING CLOSE TAIS: Trade officials in Washington have been soliciting advice for months from lobbyists for tech giants like Amazon and Google as they set about negotiating a new trade deal in the Indo-Pacific, according to a cache of emails obtained by the progressive watchdog group Demand Progress.

— “Officials with the US Trade Representative invited Amazon and Google lobbyists early last year to meet personally with Sarah Bianchi, the deputy trade representative,” according to emails provided to Sen. Elizabeth Warren (D-Mass.) by the watchdog and shared with Bloomberg News, the site’s Emily Birnbaum and Leah Nylen write. “That gave the companies insight into the confidential talks long before the public knew about the 14-nation economic initiative, known as the Indo-Pacific Economic Framework for Prosperity.”

— “‘We wanted to speak with experts like yourself to get your thoughts and feedback on our Indo-Pacific Economic Framework strategy and to further discuss the digital element of the strategy,’ an assistant to Bianchi wrote in an email to Google.”

— Warren, along with other liberals in Congress, has accused the tech industry of seeking to “tie Congress’s and regulators’ hands” on digital trade policy in the Indo-Pacific trade talks — charges the industry has pushed back on.

— The emails released by her office show current USTR officials requesting introductory meetings between former USTR officials now lobbying for tech companies like Amazon and Google, including a February request to “Google Cloud lobbyist Behnaz Kibria, another former USTR official, to request an ‘off-the-record’ meeting to get ‘feedback’ on the Indo-Pacific Economic Framework.”

— Another from a USTR official in June 2021 asked for the availability of one USTR official-turned-Amazon lobbyist “to meet with Tai ‘in your personal capacity’ to discuss ‘your time in Geneva and how you approached the job.’ In July 2021, Tai personally thanked Karan Bhatia, global head of public policy and government affairs for Google, for his ‘ability to be candid’ in a private meeting.”

— The Pharmaceutical Care Management Association has hired Lucia Lebens to lead its federal lobbying team as senior vice president of federal affairs and political strategy. She was previously vice president of government relations and public policy at Navient.

— Joshua St. Pierre is joining the American Public Gas Association as manager of legislative affairs. He was most recently a program manager at Statler Nagle LLC.

— Capitol Counsel has promoted Luke Hatzis, Joeseph Eannello and Sara Franko from principals to partners.

— Kevin Ring will join Arnold Ventures as vice president of criminal justice advocacy. He’s currently president of Families Against Mandatory Minimums.

— Andy Maas has joined Kekst CNC as a partner based in New York. He’s currently senior managing director at Teneo.

— Danielle Rolfes, who was the former co-head of KPMG’s international tax practice in Washington and previously worked as an international tax counsel at Treasury, has been named as partner-in-charge of the firm’s Washington National Tax practice, Morning Tax reports. She’ll succeed Manal Corwin, who is heading up the OECD’s Centre for Tax Policy and Administration.

— Lesly Weber McNitt has joined the Eleanor Crook Foundation as senior director of U.S. advocacy and communications. She was previously a senior professional staffer for the House Agriculture Committee.

— Colin Roskey will become executive director of Kidney Care Partners. He’s currently a principal at Federal Health Policy Strategies and is an HHS alum.

— Lavin Gartland has joined GOPAC as chief of staff. She’s president of Lavin Gartland LLC, a boutique public relations, fundraising and government affairs firm.

— The Artist Rights Alliance has named Jen Jacobsen as its new executive director. She was previously executive director at Kid Pan Alley and is a Sony and Time Warner alum.

— Heather Trew has been named senior vice president for Bank Secrecy Act and anti-money laundering at the American Bankers Association. She was most recently counselor to the general counsel on virtual assets at Treasury.

— Jorge Guajardo and Camilla White have joined Dentons Global Advisors as partners. Guajardo joins from McLarty Associates and was previously Mexico’s ambassador to China, and White was previously a managing director at Real Chemistry and FTI Consulting.

— Dan Cluchey and Sarah Gouda have left the White House to join Fenway as principals. Cluchey most recently was senior presidential speechwriter to President Joe Biden and Gouda most recently was deputy director of speechwriting for Vice President Kamala Harris. Justin Klein has also joined the firm as COO. He formerly worked with the ACLU and Onward Together.

— Deema Tarazi is joining Brownstein Hyatt Farber Schreck as senior policy adviser and counsel in the firm’s Washington office. She was most recently a senior associate at Chamber Hill Strategies. Brownstein also named Al Mottur to its executive council.

— Sarah Beerbower has joined the American Clean Power Association as vice president of member relations, per Morning Energy. She most recently served as senior vice president of corporate relations at the U.S. Chamber of Commerce.

— Jennifer Johnston is SunPower’s new executive vice president and chief operating officer, ME reports. She previously served as chief operating officer and chief financial officer at Nimble Robotics.

— Annie Wu Henry is now creative director for AAPI Victory Fund and digital consultant for the Working Families Party. She previously was social media producer for John Fetterman’s Pennsylvania Senate campaign.

— Jade Bernad is now an adviser on talent and celebrity relations at the Ad Council. She previously was director of entertainment and culture at Civic Nation.

— Dani Barnard is now chief recruiting officer at Baker Botts. She most recently was chief recruiting officer at Polsinelli PC.

— Jim Kirkland has been promoted to be senior vice president for external affairs for Trimble Inc.

— Alex Catanese is now director of advocacy for the Credit Union National Association. He was previously associate director for political outreach for the trade group.

— Tammy Gordon has joined Mercury Public Affairs as managing director for the Florida and D.C. offices. She previously was CEO of Verified Strategy and is a Novavax and Biden campaign alum.

— Will Rasky has joined Massachusetts Gov. Maura Healey’s office as federal affairs director. He was most recently a governmental affairs adviser in the federal Department of Transportation.

Elder Victory Fund (Elder for President 24, We've Got a Country to Save)
Protect the House California 2024 (Reps. Kevin McCarthy, John Duarte, David Valadao, Ken Calvert, Michelle Steel, Mike Garcia, Kevin Kiley, Young Kim, Majority Committee PAC--MC PAC, NRCC, California Republican Party Federal Acct.)

Connecting Communities NJ (Hybrid PAC)
Down Ballot Allies PAC (Hybrid PAC)
Humanetics Corporation PAC (PAC)
One American Perception (Hybrid PAC)
We've Got a Country to Save (Leadership PAC: Larry Elder)

Brownstein Hyatt Farber Schreck, LLP: Vannevar Labs, Inc.
Fonnesbeck Capitol Strategies, LLC: Kodiak Area Native Association
Homarus Strategies: Maine Coast Fishermen'S Association
Jeffrey J. Kimbell And Associates: Nevro
Keller Partners & Company: Central Christian College Of The Bible
King & Spalding LLP: Becker & Poliakoff P.A., On Behalf Of The City Of Miami
Mcguirewoods Consulting (A Subsidiary Of Mcguirewoods LLP): Mitsubishi Power Americas, Inc.
Sorini, Samet & Associates, LLC: David'S Bridal, Inc
Telegraph Avenue Advisors: Croatian Social Democrat Party
The Water Quality Association: Water Quality Association
Townsend Public Affairs: City Of Mendota
Van Scoyoc Associates: University Of Nevada, Reno

David Kilian: Innovative Federal Strategies On Behalf Of Its Clients
Dinino Associates, LLC: Cornerstone Government Affairs Obo Nutanix, Inc.
Dinino Associates, LLC: Cornerstone Government Affairs Obo Smartronix
Dinino Associates, LLC: Cornerstone Government Affairs Obo Tate, Inc.
Dinino Associates, LLC: Cornerstone Government Affairs Obo Tate, Inc.
Federal Hall Policy Advisors, LLC: International Council Of Shopping Centers
Jeffrey J. Kimbell And Associates: Genus Medical Technologies
Mckechnie & Company: Pittsburg State University
Port Side Strategies, LLC: Avaaz Foundation
Venable LLP: Interactive Advertising Bureau

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