Far from FARA? Georgia's foreign agent law controversy
Georgia's ruling party cites the U.S. in defense of its controversial bills on foreign agents, but critics argue the nation is learning from the worst.
Fears are growing that Georgia is stepping further down an authoritarian path with a bill that threatens to stymie and stigmatize non-profit groups and media – the main guardians of democracy in the nation. The Georgian government claims that it merely seeks to emulate the American experience in containing foreign influences, but a comparison of legislation and their respective political environments suggests that Georgia drew inspiration instead from Russia.
The controversial draft law – “On Transparency of Foreign Influence” – calls for labeling as foreign agents all non-profit organizations and companies that source at least 20 percent of their funding from abroad. This will effectively cover the entire spectrum of democracy, corruption and rule-of-law watchdogs, local chapters and partners of international development and humanitarian organizations, and independent media.
In other words, everyone who keeps tabs on the nation's democratic commitments will be branded as foreign agents – a term that in the Georgian sense primarily denotes a foreign spy.
The ruling Georgian Dream party argues that it had nothing but transparency in mind when it announced its support for the controversial bill tabled by People's Power, a recent offshoot of the ruling party. "Georgian citizens have the right to know what vested interests and what kind of financing stand behind the entities that participate in formulating and making political decisions," said Parliament Speaker Shalva Papuashvili.
By way of justification, the Georgian Dream refers to U.S. legislation dating from the 1930s, the Foreign Agent Registration Act (FARA). But there are critical differences between FARA and the Georgian draft, based on an analysis conducted by the International Center for Not-for-Profit Law (ICNL), a Washington DC-based advisory network supporting a civil society-enabling legal environment and its Hague-based partner, European Center for Not-for-Profit Law.
One crucial difference is that FARA does not require registration simply on grounds of foreign funding, their report says. "Rather, one must be an agent of a foreign principal, including if one acts at the direction and control of a foreign government," says the report. "Many U.S. non-profit groups and media organizations receive foreign grants and other support, but the U.S. has not required them to register as foreign agents under FARA."
In fact, a mere 5 percent of those registered under FARA are non-profit groups and even these are mostly branches of foreign political parties, the report found.
While the U.S. law focuses on political lobbying, the Georgia law will primarily affect the nation's vibrant civil society that donors have nurtured for decades. This civil society has helped expose and keep in check authoritarian urges by a succession of Georgian governments. "Georgia has fought hard to build its democracy, to protect its freedoms," said U.S. Ambassador Kelly Degnan on February 27. "These laws will undermine that progress that Georgia has spent so many years building."
After meeting a concerned group of Western ambassadors, Parliament Speaker Papuashvili said that local and international worries about the draft are focused on the semantics. But the ICNL report argues that beyond demonizing non-profit groups and media, the bill would threaten to their access to funding, and impose burdensome registration and reporting requirements, "thus exposing them to unlimited government inspections and establishing harsh penalties for violations."
"The goal of this law is clear: make us disappear," said Nestan Tsetskhladze, editor-in-chief of Netgazeti – a rare independent, professional voice in Georgia's partisan media scene. "This is a disaster in the making, as we are headed toward a future where citizens are left in an information bubble, without critical news and hope."
Netgazeti, like all providers of independent and quality news content in Georgia, is backed by international donors. Opposition-minded news outlets also receive funding from abroad.
Tsetskhladze has no doubt that the bill is the first step toward a pending crackdown on media and civil society. Her concern is shared by over 300 news companies and nonprofits that signed a joint statement against the proposed law. The statement pointed to Russia, where similar legislation was adopted in 2012 and was used to harass and scatter human rights watchdogs and critical news outlets.
The claim that the Georgian government got the idea from Russia is partly based on Georgian Dream leaders' public statements that mimic the Kremlin's rationalization of its foreign agent laws. "The draft law is far more lenient than its American version," said Irakli Kobakhidze, the chairman of Georgian Dream, repeating verbatim what Russian President Vladimir Putin said in defense of the Russian version back in 2012.
Back in the day, ICNL also made a comparative analysis of FARA and the Russian law on foreign agents. The organization then highlighted many of the same differences and concerns that it now has with the Georgian draft. For instance, unlike the Russian legislation and proposed Georgian legislation, FARA is "not limited to or directed against non-government organizations," ICNL said.
Both the Georgian bill and the Russian law had been proffered to the public primarily as a measure directed at NGOs. "The lack of transparency of funding of the richest non-governmental organizations raises a lot of questions, especially given that these NGOs are directly involved in political events and do not hide their partisan preferences," said Kobakhidze. He criticized organizations like Transparency International and ISFED – corruption and election watchdogs respectively – whose sources of funding are in fact publically available.
The most obvious difference with the American legislation is the raison d'etre of the Georgian and Russian versions. "The intent and context of these two laws is totally different for sure," commented Ted Jonas, a Tbilisi-based corporate lawyer and a critic of the Georgian Dream government.
While he is in fact a critic of FARA, Jonas points out that the U.S. law originally came about in response to national security threats stemming from Nazi and Soviet influences, and the legislation was rarely invoked before Donald Trump's presidency. So by referring to FARA, he says, "Georgian Dream says that Western-funded NGOs are the same threat to Georgia as Nazi and Soviet agents were to the USA in 1938."
Who's your partner?
If FARA is meant to keep tabs on influence-peddling within government from hostile nations, the Georgian draft is taking aim at the nation's stated strategic partners, U.S. and EU, as they are the main sponsors of NGOs and media in Georgia. The Georgian bill in fact appeared amid increasingly acrimonious exchanges between the Georgian government and its Western partners.
Irked by Western criticisms of Georgia's unfulfilled democratic commitments and its restrained position on the war in Ukraine, the Georgian government has over the past year assumed an unprecedentedly aggressive tone toward EU and U.S., accusing them of meddling in domestic affairs and even attempting to drag the nation into a war with Russia. It is widely believed that Georgian Dream in fact created People's Power, the spinoff that drafted the controversial bill, specifically to engage in anti-Western rhetoric.
The bill also runs counter to Georgia's stated desire to become a candidate for EU membership. The bill is inconsistent with European Union legislation and the European Court of Justice struck down similar legislation in Hungary in 2020. "The European Union is supporting Georgia in its reform efforts, responding to the country's own aspirations for continued development and EU membership," said a February 24 statement by the EU Delegation in Georgia. "The draft law's adoption would be inconsistent with these aspirations and with the EU norms and values."
People's Power in the meantime has produced another bill on Foreign Influence Agents, which the party claims is a direct copy of FARA. While no detailed, independent comparative analysis to FARA is available, the second bill is more stringent, as it extends the foreign agent registration requirement to individuals. Both bills are being reviewed at the parliamentary commission level over protests from media, international organizations and foreign diplomats.
In its past reviews of FARA, ICNL has often criticized the U.S. law for many pitfalls that could be weaponized in America’s own partisan political struggles. But the criticism is also centered on "FARA's double life abroad."
"While FARA has traditionally been narrowly enforced in the United States and it has critical differences with legislation in other countries, FARA's broad language has made it easy for foreign governments to draw parallels between their legislation and U.S. law," the ICNL said.
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