Foreign agent law fundamentals, part I: we need to be honest with ourselves
Thoughts on recent events in Georgia
Full disclosure: I’m part of the problem
Before reading on, about foreign agent laws and the West’s response to them, you should know this about me: I hold fundamentally critical views of the role of foreign money in civil society and politics in the former Soviet Union, even as, for all of my professional life, I have been helping activists in that part of the world access foreign funding, by writing grant proposals for and with them, lobbying grant-makers and Western governments for more, and more easily accessible, funding, by advising foundations and reviewing grant proposals, even winning a few big grants that my colleagues and I shared out as subgrants.
I know from personal experience what it feels like when urgent, indispensable human rights work needs to be done and even with all the volunteering can’t be done without money, and there is no other, more sustainable, way to get enough of that money fast enough besides applying for a grant, and yet while you write the proposal you regret the compromises you’re being forced into, and how they take you further down a dead-end road of constituency confusion and dependency. Because I do this all the time.
Earlier this year, I worked on major grant proposal (for grassroots Ukrainian activists), and just days ago I reviewed - and endorsed - an emergency application to a women’s funder. Being so entangled in the transfer for Western money to post-Soviet activists is increasingly unpalatable, but it also means I have skin in the game. To assuage my discomfort, I write, edit and translate grant proposals on behalf of grassroots activists pro bono. There must have been hundreds, over almost 20 years. Still, any money I’ve ever earned in my career came from a grant or a grant-maker.1
For much of the past decade, my colleagues and I were battling Russia’s notorious “foreign agent” law. At the time of the adoption of Russia’s foreign agent law in 2012, I was working with Russians NGOs receiving foreign funding (some of which I had procured for them), and I continued to do this until Russia invaded Ukraine. I witnessed that law’s repercussions up close: the anguished debates, convoluted amendments, the arbitrary and unpredictable implementation, the contorted strategies of NGOs to escape it, the threats and stress this caused.
It has been a decade of playing cat-and-mouse, frantic strategizing to keep our Russian colleagues safe while keeping their work going, an exhausting, costly experience that only got worse over time. I don’t just have skin in the game, I have left blood on that battlefield (apologies for being melodramatic).
Even so, I thought in 2012, and I still think today, that the debate around that law was dishonest. Not just the arguments of the Russian government; that’s a given. At all the conferences on the “shrinking space” in the decade since, I have never encountered an honest discussion of all the thorny implications of Western funding for the non-profit sector in the Global South, and I’ve looked long and hard.
Money is never “just money”
Money is at the heart of everything, it is power incarnate. It is never “just money”. When the US Supreme Court in 2010 ruled in Citizens United that money was “free speech”, and unlimited political funding protected by the constitution, Americans concerned about equality, democracy, justice and transparency flinched and correctly predicted that it would have a disastrous impact on US politics and society.
This is the first thing Western policy-makers, foreign aid agencies, pundits and funders need to be more honest about, starting with themselves. We consider unconstrained political funding harmful to our own democracy, even if it comes from domestic sources. Yet we insist that poor countries in the Global South permit unlimited and unregulated foreign funding of their NGOs (whom we often prod to venture into politics) and celebrate it as a sign of their democratic bona fides.
There are a lot of superficial and ultimately dishonest arguments in the discourse around foreign agent-type laws. Starting with Russia’s argument that its original foreign agent law2 from 2012 was modeled on US's 1938 Foreign Agent Registration Act (FARA) and/or and a similar Israeli law and had the same objectives. Much has been written about this, and there is no need to repeat it here.
But, but… their law is not like FARA!
One of the dishonest arguments by Western governments, experts, donor agencies, and of course the latter’s grantees, is that Russia-type foreign agents laws are not the same as FARA.
This is a red herring. Of course these laws are not exactly like FARA, because the phenomenon they’re tackling is not exactly the same as the lobbying industry in the US. The systems and industries that sprouted around foreign funding and foreign influence on domestic politics in Georgia, Russia etc. are radically different from those in the US, for historic, political and economic reasons.
The critics are vague about why and how these laws are not like FARA. They might mumble that FARA doesn’t target NGOs, but lobbyists - law firms, PR agencies etc. That’s neither here nor there. With clients willing to underwrite generous profit margins, the US lobbying industry has taken the shape of lucrative for-profit businesses, not charities.
US-based NGOs could theoretically fall under FARA, if they conducted “political activities” on behalf of a foreign principal. But this rarely happens, because foreign influence work is firmly in the hands of for-profit lobbying firms. In any case, US NGOs make a wide berth around politics, albeit due to tax law.
The regulatory target of FARA is foreign influence, the vehicle for that influence are paid lobbyists (now that foreign influence is starting to take more nebulous forms, US policy-makers are getting nervous that FARA isn’t quite up to the task). In countries like Georgia, where bilateral aid agencies or foreign foundations routinely pay NGOs to draft laws, advise government, train public servants and provide a check on political power, the preeminent vehicle of foreign influence are NGOs.
One tacit assumption about why the foreign agent laws in countries like Georgia, Hungary or Russia are not like FARA is that unlike the selfish, sinister clients of the greedy lobbying firms that FARA regulates, foreign aid donors and philanthropists are altruistic and have no agenda but the self-determined flourishing of the countries where they send their grants. Why demand oversight and limits on foreign money, if that money is good for you?
Do I even need to deconstruct this? At a time of intense geopolitical competition, high-handed one-size-fits-all norm transfer processes, brutal arm-twisting of poor peripheries into crippling terms of trade? Of private foundations with endowments larger than many countries’ GDPs pursuing esoteric theories with religious zeal? Crack open any trade publication for the foreign aid and philanthropic industries and read up on it.
When democracy promotion has failed, do more democracy promotion
What about the argument that in a country like Georgia, where democratic institutions remain weak (after a quarter-century of continuous, massive foreign investment in their capacities, remember) and where a succession of governing parties can’t seem to shake their autocratic instincts, only civil society serves as a check on power, and that civil society can only exist with (unconstrained) foreign funding?
That strikes me as the equivalent of helicopter parenting, replete with self-appointed self-importance (“if not for us …”) and essentialist fatalism (“… those hopeless, hapless Georgians would descend into autocracy”). It is a circular, defeatist argument, which posits that Western funding for Georgian NGOs must continue in perpetuity, precisely because billions and decades of funding those same democracy promotion and capacity-building NGOs have made little difference. But I have to admit, at least this argument is not dishonest. It’s revealing.
What’s a little foreign funding among friends?
A rather more dishonest argument, made by Western foreign policy elites when subalterns like Georgia start squirming, is that acquiescing to unlimited foreign funding for NGOs is a hallmark of enlightened worldliness. If you were cool like us, they signal, you’d be relaxed about this. Being protective of your sovereignty and suspicious of foreigners is gauche, or worse, betrays a lack of shared democratic values. I’ve been told that an American foundation might have grantees in Germany or the UK, and this or that German foundation finances organizations in the US, and nobody makes a big deal out of it, it’s totally normal, as long as you share the same values.
Not quite. Let's not pretend to be surprised that size matters. US funding for German NGOs and vice versa is infinitesimal, barely a blip on the radar compared to the robust domestic financing for civil society organizations in both countries. In Hungary, where Viktor Orban notoriously adopted a “transparency law” in 2017, the percentage of foreign funding of the civil society sector was ~14.5% in 20153, and according to a well-informed local observer has probably gone up since then. I couldn't find equivalent data sets for Georgia, but there is unanimity among experts and stakeholders, foreign and local, opponents of the foreign agent law as well as critics of foreign-funded NGOs' role, that the country's NGO sector is funded at close to 100% from abroad.
Let's be honest (with ourselves): would we be relaxed if 14,5% of our country’s NGO sector (primarily the most vocal and critical ones, too) were funded from abroad, as in Hungary? What if it was nearly 100%, year after year for already a generation, with no end in sight, as in Georgia? Still totally normal?
Foreign funding: a European value? Standard? Norm?
In another instance of dishonesty, the EU’s High Representative for Foreign Affairs and Security Policy Josep Borrell condemned Georgia’s draft law as “incompatible with EU values”. But there is no EU value (or standard or norm, which he has referred to as well) that upholds the flow of foreign money into any area of social and political action, into every nook and cranny of civil society, unchecked and unimpeded. Such a value cannot be extrapolated from internal EU practices, either; EU member states don’t routinely fund each other’s civil societies, like some continent-wide merry-go-round potluck. Foreign-funded NGOs don’t write laws in Denmark, Portugal or Luxembourg or train their judges. Nor do they put themselves forward as a superior, technocratic government in EU member states, as happened last year in Georgia.
Borrell’s short statement doesn’t explain where such a value, standard or norm might come from. It does, however, say “[the draft law] goes against Georgia’s stated objective of joining the European Union, as supported by a large majority of Georgian citizens. Its final adoption may have serious repercussions on our relations.” There is a distinct whiff of the racketeer about these words. Nice country you have here. Would be a shame if something happened to it. Like not getting EU candidacy status.
Sovereignty is still a thing
Helpfully, within days of Borrell’s statement, news broke that the EU has been working on a “foreign agents” law of its own. NGOs will be one of the sectors targeted by this forthcoming regulation. Perhaps it will clarify exactly which values, standards or norms supposedly uphold the free flow of NGO funding?
Inevitably, there was some snickering about the awkward timing of this revelation, with the Georgian protesters’ EU flags barely dry from their encounter with water cannons. But accusing the EU of tin-eared hypocrisy is lazy and not particularly original. Nor is it my point.
My point is that there are sound reasons for states (or the EU) to want to retain control of their political processes, public discourse and national interests. “Regulating foreign influence and constraining outside interests”, as yesterday’s New York Times op-ed page about corruption in the European Parliament’s puts its, are “the more rudimentary elements of statecraft”. It concludes that the EU still has a long way to go on them.
Now that the shoe is on the other foot, we ought to initiate a more honest conversation, beginning with ourselves. Without going into the specific motivations of Georgia’s government or others that have passed foreign agent laws, it is neither wise nor fair to categorically reject transparency and limitations on foreign funding as inherently incompatible with human rights, the rule of law and democracy. It is dishonest, because we know better: without oversight, transparency and boundaries to the influence money can buy, citizens’ ability to hold the powerful accountable is severely diminished.
Transparency, accountability, equal voice and participation for all citizens, their full and exclusive say in defining national interests and, ultimately, sovereignty are indispensable elements of democracy. Treating them as luxuries reserved for powerful, wealthy hegemons would be ruinous.
PS: I have previously written about Western double standards on foreign funding:
I have been thinking about foreign money as a liability for civil society since even before Russia’s 2012 foreign agent law. Foreign money causes organized civil society to drift away from society, become estranged, unmoored, elitist and at the same time precarious, weak and vulnerable. For much of the last decade, I tried to do what seemed the obvious, constructive way forward - help Russian activists raise money at home. I’ve also had many conversations and shared learning experiences about domestic resource mobilization with activists in other post-Soviet states.
If you’re interested, you can read/watch more about it here:
https://www.opendemocracy.net/en/odr/funding-russian-ngos-opportunity-in-crisis/
https://www.openglobalrights.org/funding-changes-in-the-caucasus-will-ngos-adapt/
Since January 2023, this blog has two paying subscribers, who, I suspect, clicked the paid subscription button by mistake (my Substack is free), so I’m now making an honest living in the amount of $13.18 per month.
There is no freestanding Russian law by that name. These norms were adopted as amendments to the law on non-profit organizations.
See https://www.ksh.hu/stadat_files/gsz/hu/gsz0012.html for total funding of the civil society sector each year, and https://curia.europa.eu/juris/document/document.jsf?text=&docid=227569&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5758123 for the amount of foreign funding in 2015.
Very interesting article with some good points!
However, discussion of FARA law as it developed and was used in the United States has a history that is forgotten but terribly important. You can read about that history in a Substack article I recently wrote, or in a much earlier Medium.com article. Briefly, your readers, and U.S. citizens as a whole, should know that for much of the Cold War, FARA was illegally invoked in a mail seizure campaign by the U.S. Post Office, Customs Dept., and Dept. of Justice, which for well over a decade seized and destroyed millions of pieces of third class mail (books, academic journals, magazines, audio media, etc.) coming from "Iron Curtain" countries. It was the largest or among the largest censorship programs ever instituted in the U.S., but its existence has been all but erased from modern discourse.
Please see https://kayej.substack.com/p/the-biggest-mail-censorship-program, or https://jeff-kaye.medium.com/censored-north-korea-accused-u-s-of-working-with-unit-731-war-criminals-on-bw-attacks-d7fd819ed8b7?sk=e95d8a3128be4b8a70fca654fb6b421f
Отличие ФАРА от рашкинских педозаконов заключается в том, что по ним невозможно посадить кого угодно.