How to Lobby for a Foreign Government (and not get arrested)
Press treatment of the story about Pakistani government funding of a Kashmiri lobbying organization seems to have less to do with lobbying than with the identity of the particular government involved and the temperature of relations between it and Washington. The report is one more in a series of stories over the past several months—including the Raymond Davis affair, the unilateral raid that killed Osama bin Laden, and much more—of an ever-worsening U.S.-Pakistani relationship. An extra angle is the involvement of the Directorate for Inter-Services Intelligence, which is probably in at least as bad odor in the United States as any other part of Pakistani officialdom. Against this background, the dominant U.S. view of the announcement regarding the Kashmiri lobbyists is reflected in the print headlines in the mainstream press. The Washington Post refers to a “Pakistani spy front.” The New York Times mentions a Pakistani “plot.” But there does not appear to have been any espionage involved. And the activity in question was a plot only in the sense that any lobbying effort can be described as a “plot” to try to influence policy.
The Pakistanis do not seem to have gotten much for their effort. U.S. policy toward the Kashmir dispute has for years been the mild, non-activist one of saying the conflict is one for India and Pakistan to resolve, with due regard for the preferences of the people of Kashmir. It would be politically unrealistic (whether or not it was unreasonable on other grounds) to expect anything more. On any matter that pits Pakistan against India, the Pakistanis have to go up against a formidable India lobby, whose effectiveness is rooted in the size, wealth, and activism of the Indian-American community. Pakistani government funding of the Kashmiri lobbying organization was reportedly $700,000 per year, which is little more than chump change compared to the most potent domestic lobbies that work Capitol Hill.
The federal indictment that was announced Wednesday, with the arrest of a Washington-based official of the Kashmiri group, was for violation of the Foreign Agents Registration Act. This law, which requires those acting in a political or quasi-political capacity as agents of a foreign principal (which could be, but is not limited to, a foreign government) to put themselves on a list kept by the Department of Justice. The law has a legitimate and important purpose in facilitating transparency and making it easier to judge the motivations of those trying to influence U.S. policy. But whether or not a prosecutable case against a lobbyist can be assembled under the FARA is not the same as whether or not the lobbyist is exerting pressure on policymakers in the legislative or executive branch on behalf of a foreign government. Some of the strongest and most effective lobbying on behalf of foreign governments is done not by someone being bankrolled directly by the government in question and thus clearly an “agent,” but instead by lobbyists supported by others who strongly sympathize with the foreign government. That is true of most of what constitutes the India lobby, which thus escapes the “agent” designation. And it is true for the most part of the pro-foreign government lobby that runs circles around all of the others and that even ranks up with domestic lobbying powerhouses such as the NRA and AARP in its impact and effectiveness: the lobby that works on behalf of the Israeli government.
If one looks beyond the literal requirements of the FARA and considers the sound purpose that the act is intended to advance, there is a lot of lobbying on behalf of foreign interests that is never explicitly acknowledged because it is beyond the reach of that law. We are talking about a legal distinction that is a distinction without a difference as far as the public interest is concerned. Whether a lobbyist is paid directly by a foreign government or paid by others within the United States who are providing their support to advance the interests of that same government, the impact is the same. In each case, pressure is being exerted on U.S. policy, and it is being exerted on behalf of a foreign interest. So one way to lobby while not getting arrested is to avoid the sort of direct bankroll relationship that tripped up the Kashmiri lobbyists.
There is another way, which is to use institutional subterfuges and the sheer clout of the lobby itself to escape prosecution under the FARA. The Israel lobby has managed to do this. Today's American Israel Political Action Committee has its origins in the lobbying arm of a predecessor organization, the American Zionist Council, which was directly funded by the Jewish Agency of Israel. In the early 1960s the AZC came under pressure from the Kennedy Justice Department to register under the FARA. The issue became the subject of an inquiry by the Senate Foreign Relations Committee, chaired by J. William Fulbright. Shortly after this pressure began, the chief AZC lobbyist established an ostensibly new and separate organization, which was AIPAC. Sometimes the issue has arisen whether AIPAC itself ought to register under the FARA, but each time the lobby's own political power—greater now than in Senator Fulbright's time—has been sufficient to stifle any moves in that direction. An objective inquiry into this subject such as Fulbright initiated would be unthinkable on Capitol Hill today.