Lobbying for tyranny

Two big Washington lobbying shops helped Manafort try to make Ukraine a Russian puppet state. Neither registered as a foreign agent. Was that legal?

So it turns out that two major Washington lobbying outfits were involved with Paul Manafort’s attempt to turn Ukraine into a Russian puppet state. In good bipartisan fashion, one was Democratic (the Podesta Group, headed by the brother of the Clinton campaign manager) and the other Republican (Mercury, featuring Vin Weber). Even assuming that what they did was legal, it was morally disgusting.

What Manafort did was almost certainly illegal. He recruited Podesta and Weber as lobbyists. While the actual checks to them came from a sketchy-Brussels-base NGO called the European Centre for a Modern Ukraine, Manfort was working directly for the Party of Regions (indirectly, of course, for the Kremlin). If he was arranging for lobbyists, then he was acting as an “agent of a foreign principal” and should have registered under the Foreign Agents Registration Act.

But both the Podesta Group and Mercury insist that they had no idea who they were really working for, and that as lobbyists for an NGO rather than a foreign government or political party they didn’t have to register. Apparently they had legal advice to that effect, and maybe that advice was sound.

However, that advice does not seem (to my unlawyerly eye) to track the actual text of the statute. FARA defines a “foreign principal” to include:

a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.

There’s no exclusion for NGOs.

An “agent of a foreign principal” is one who:

(i) engages within the United States in political activities for or in the interests of such foreign principal;
(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or
(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States

So unless there’s an NGO exemption hidden somewhere in the caselaw, it’s hard to see how either Podesta or Mercury didn’t break the law by acting as agents of a foreign principal without registering.
If not, the law needs changing, given how easy it is to set up a front-group NGO.
And while we’re at it, someone better start paying attention to the way that Citizens United allows foreign corporations (or just foreign oligarchs) to set up U.S. subsidiaries or firms that are then free to engage in “political speech” without anyone knowing who’s calling the shots.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

8 thoughts on “Lobbying for tyranny”

  1. But both the Podesta Group and Mercury insist that they had no idea who they were really working for,

    Thanks for the chuckle.

    1. They must have had an idea what they were supposed to lobby for: in fact, written instructions. Were these distinguishable from the positions of the Party of Regions? If not, the presumption is that it was a front.
      Josh Marshall rightly observes that once a DOJ investigation lumbers into action, it will turn over a lot of rocks.

      BTW, will Trump escape a postmortem investigation into breaches of campaign finance law? If the accusations come from Republican donors, Clinton's DOJ can't be accused of launching the investigation as political revenge.

      1. This is what seems missing here. What were they actually asked to do? Who did they contact and what were the asks? I know these things are often couched in terms meant to obscure but when you look at the actual details of what they sought you should get clarity about whether they should have known for whom they were actually working.

  2. Concerning the statute: There is not an exemption for NGOs per se, but lobbyists can choose to register and report under the (less onerous) Lobbying Disclosure Act, per 22 U.S.C. § 613(h), https://www.law.cornell.edu/uscode/text/22/613. This exemption doesn't apply to lobbyists for foreign governments and foreign political parties, who must register and report under FARA.

    However, Podesta Group and Mercury realized that they would be subject to FARA if this NGO were controlled or financed by the Ukrainian government or a Ukrainian political party. So they obtained a letter from the NGO denying that this was the case. Whether they had reason to believe those assurances seems questionable.

  3. "Start" paying attention? This was my first thought after Citizens United. I think our laws do not even allow us to know which foreigners are financing political speech here, if they play their cards right.

  4. Several comments have been deleted to prevent thread-jacking. (In this case, about the return of Iranian money after the nuclear-materials deal.)
    There have been a number of off-line complaints about the degeneration of the RBC comments section into … well, into a typical comments section.
    As a result, our commenting rules will be more stringently enforced from her on out.
    To summarize:
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    2. Keep them relevant to the post. (No "But how about ….?")
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    4. Keep them reasonable in number. If you find yourself compelled to offer a comment on each and every post, restrain yourself. Or start your own damned blog.

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