On Tuesday, El Salvador’s Minister of Governance Juan Carlos Bidegaín — under what he called “special instructions” from President Bukele — announced the bill for a new Foreign Agent Law that the Salvadoran government claims will “guarantee transparency” and “preserve social and political stability,” but that civil society groups say is meant to limit their work and choke off funding to the independent press.
The law will require people and organizations whose activities “respond to the interests of, or are directly or indirectly funded by, a foreigner” to register as a foreign agent and submit to government inspections, although the law does not specify the limits of these requests.
A new 40 percent tax will also be applied to all foreign payments to registered foreign agents even if receivers are nonprofit organizations. Failure to register or to comply with any provision of the Foreign Agent Law can result in cancellation of legal status and a fine of up to $10,000.
Nuevas Ideas legislative bloc chair Christian Guevara noted that the bill is aimed explicitly at grant funding to independent journalism from international NGOs. “Those journalist’s juicy salaries are over,” he said in a television interview, calling out Open Society Foundations, which partially funds El Faro. “Some of those funds were used to finance marches, but that’ll no longer be allowed,” he claimed.
Exemptions written in the law include businesses with “strictly commercial” aims, diplomatic missions, international organisms and cooperation agencies, and humanitarian aid organizations.
The bill, which is expected to be approved by the Nuevas Ideas-controlled Legislative Assembly, broadly prohibits organizations from carrying out activities “for political or other purposes, with the intent of altering the public order or jeopardizing national security or the social or political stability of the country.”
The law concedes significant new power to the Executive branch. The list of foreign agents will fall under the direction of the Ministry of Governance, and the president will be allowed to “approve as many regulations for the application and development of this law as are necessary,” without legislative approval, according to the proposal.
A strike against critics
Bukele and his party immediately applauded the law and lashed out at certain NGOs and members of the press. “Taking foreign money is not illegal, not disclosing is,” tweeted Damian Merlo, a Bukele lobbyist in the United States, implying once more that independent media hide their funding. He continued: “‘Investigative’ outlets that claims [sic] to “uncover” information, do nothing more than look up FARA filings online. Now, people in #elsalvador will be able to do the same.”
“The party is over,” wrote Bukele ally Walter Araujo, tagging Ruth López, a lawyer at human rights NGO Cristosal. “With a magnifying glass EVERY CENT they receive will be reviewed.”
López responded that civil society already provides reports to government entities. “More transparency is BETTER, this will never be understood by the mercenaries who worry so much about my work.” López has regularly questioned the lack of transparency of the Executive branch’s emergency spending during the pandemic, for which the Nuevas Ideas-controlled Assembly sealed the records for seven years.
Bukele has justified this law and other actions attacking critics by saying that he is increasing transparency and rooting out corruption. It’s the same argument that the Assembly used when it illegally removed the Constitutional Court judges on May 1 and when it purged one-third of the country’s judges in September.
In 2020, the government opened a broad audit into El Faro’s finances, including a request for the info of individual subscribers, which El Faro refused to provide. The newsroom, which denounced the request as an abuse of power, sought and was granted an injunction from the previous Constitutional Court. The new law would compel El Faro to provide its list of subscribers or risk annulation.
Echoes of Nicaragua
The proposed law quickly drew comparisons to a similar “foreign agents” law passed by Nicaragua’s Ortega-Murillo regime in 2020, condemned by press freedom organizations, the Inter-American Commission on Human Rights, and the U.S. State Department.
Under that law some civil society organizations, such as the Violeta Barrios Foundation, were shuttered after they refused to enroll as agents acting in the interest of a foreign government. The government also used the law to raid the offices of independent news outlet Confidencial and to construct money laundering cases, most notably against presidential candidate Cristiana Chamorro, who is now on house arrest.
Bukele tried to preempt the notion that the law is Nicaragua-inspired, instead comparing it to the U.S. Foreign Agents Registration Act (FARA). “Interesting how “journalists” claim that the Foreign Agents Law is based on a law from Nicaragua and not from the United States,” he tweeted. “They’re not real journalists. They’re just political opposition activists.”
A similar law in Guatemala, which allows the government to cancel NGOs the government finds to “alter the public order” and increases government financial controls, went into effect in June 2021. The UN and the Organization of American States (OAS) said in July that the NGO Law “opens the door to arbitrary limits on NGO activities and could potentially be used to criminalize human rights defenders and civil society.”
Fallout from Russiagate
Since its inception in 1938, FARA has largely applied to “lobbyists, public relations professionals, prominent business people, or former U.S. government officials” employed by foreign governments to influence policies and legislation, but does not levy an additional tax on foreign agents for the payments they receive.
Beginning in 2017, and in the wake of Congressional debates over foreign interference in the 2016 U.S. presidential elections, the Trump administration began to mandate the FARA registration of foreign-based media outlets that the Department of Justice (DOJ) said sought to “influence U.S. policy or public opinion on behalf of another state.” Registered newsrooms became ineligible for press passes and they commonly denounced reduced access to sources and other resulting impediments to their work.
Registered outlets included organizations funded by the governments of Russia, China, and Turkey. In addition to information on its funding and internal structure, the Russian state-affiliated media outlet RT even submitted DVD copies of every program it aired and lists of emails and interviews with sources, according to the Committee to Protect Journalists.
“In invoking FARA, Congress is relying on a notoriously opaque unit within the Department of Justice to draw an impossible line between propaganda and journalism,” wrote Columbia Journalism Review in 2018. “Source protection, media access, and the U.S. promotion of press freedom abroad may all be compromised.”