The “Think Tank Transparency Act” is Overbroad

April 17, 2023

Think Tank: A Troubled Culture | The Apollos

Democracy is always at a strategic disadvantage in geopolitical competition. If democracy and its opposite were football teams, democracy would have to make transparent it’s entire game plan and all its strategic plays before the big game. It’s opponent could run secret trick plays, and could even join in democracy’s strategic planning decision-making, advocating for strategies and open source plays to hasten democracy’s loss from within. In geopolitics, the only thing a democratic nation-state can do to mitigate its disadvantage, without sacrificing itself, is to insist that opponents adopt the same level of transparency. But that only works for games on democracy’s home field where the insistence can be enforced. And the problem is, the insistence is often articulated in a way that implicates rights of transparency (etc.) guaranteed under the Constitution. Democracy, in its efforts to protect itself, risks playing by their rules instead of forcing the opponent to play by Democracy’s rules.

So, that’s all you need to know about the motivations for the Think Tank Transparency Act, but if you want a wordier explanation, check out the American Enterprise Institute’s discussion. But don’t get it twisted. The proposal is not just some right wing reactionary legislation. It has broad bipartisan support because it is aimed China and Russian, democracy’s primary geopolitical opponents.

The Act will require “think tanks” — that phrase coming from Section 1, and appearing six more times in the Congressional findings but not thereafter — to tell the Attorney General they receive cash or property from a foreign party, either through contributions or contracts. But look, this ain’t just about some lil neighborhood “think tank”. The law will cover every 501(c)(3) entity — except colleges, universities and churches — and every 501(c)(4) entity, in either case if the entity spends more than 20% of its “resources” to pretty much say anything. Here is the “conduct” covered by the act:

any activity that the covered entity engaging in believes will, or that the covered entity intends to, in any way influence any agency or official of the Government of the United States, or any section of the public within the United States, with respect to (A) formulating, adopting, or changing the domestic or foreign policies of the United States; or (B) the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.

There is a whole lotta “any” in that definition, I’m just saying. And if the entity is merely “affiliated” (don’t ask me) with a college or university, the covered “conduct” happens when an organization “(I) engages in or publishes substantial policy-related research or scholarship; or (II) hosts, sponsors, or otherwise promotes annual, or on a more frequent basis, events featuring reporters, journalists, or United States or foreign government officials.”

Charities and social welfare organizations not only have to report “gifts, contributions, and donations from foreign sources by name, but also “contracts” entered into or amended after the act is adopted. A contract is defined as buying or selling anything to or from a foreigner. Any. Thing. Don’t get it twisted, this provision will have more than obscure impact. If you buy or sell product or service, you gotta report. And not just to the IRS. You gotta tell the man — that’s right the Attorney General — and you know what that means. A charity could conceivably have to report the purchase of number 2 pencils from alibaba. This proposal doesn’t smell constitutional. It’s too broad and indeterminate. Anyway, here is the Press Release:

Sen. Chuck Grassley (R-Iowa) today reintroduced legislation to require greater transparency of think tanks and other non-profit entities that inform and influence American public policy. Companion legislation was introduced in the House of Representatives by Congressman Jack Bergman (R-Mich.).

“We can’t allow for think tanks and nonprofits to become a backdoor for foreign nations to exert influence and attempt to sway public opinion,” Grassley said. “The American public ought to know who’s influencing research and public policy in our country. The requirements and penalties in this bill will go a long way towards exposing our adversaries and those who are willing to cooperate with them.”

“The American people deserve to know what these think tanks are up to, and who they’re working for,” Bergman said. “The assumption that they are non-political, pseudo-academic entities advocating for policies that are in the national interest is no longer accurate, given the increasing amount of funding they receive from foreign governments, often earmarked for specific projects.”

Background

The Think Tank Transparency Act of 2023 requires think tanks and non-profits engaged in influencing U.S. policy or public opinion to promptly make available for the American public all funds provided by foreign principals, as well as all contracts and agreements they enter into with foreign principals. Within 90 days of receiving funds from or signing agreements with foreign principals, public policy nonprofits would be required to disclose the funding and contracts to the Justice Department—who in turn will make such disclosures available for immediate public inspection on an Internet database similar to FARA.gov.

The bill also creates enforcement mechanisms so the Justice Department can impose compliance when necessary. Out-of-compliance entities will face a penalty of at least $1,000 per day, and the department may bring civil action to compel compliance. The legislation also provides that non-compliant entities must repay the full cost of obtaining their compliance if the Justice Department has to take action—recouping all taxpayer money spent.

darryll jones