(Updated to include more details about the Sixteen Thirty Fund)
A leading coalition that opposed the 2022 constitutional amendment on abortion is challenging a state law that bans foreign money from flowing into campaigns for state constitutional amendments.
Kansans for Constitutional Freedom, which opposed an amendment removing the right to an abortion from the Kansas Constitution in 2022, filed a federal lawsuit claiming that the law would infringe on the free speech of U.S. citizens.
“The bill’s proponents claimed that HB 2106 is necessary to protect against foreign
interests influencing its voters as they decide whether to approve or reject proposed constitutional amendments,” the lawsuit said.
But the “new broad, expansive, and burdensome restrictions are not limited to foreign governments or their subsidiaries, foreign nationals situated abroad with little to no
connection to the United States, or foreign corporations,” the lawsuit said.
The lawsuit said the bill defined foreign national in a way that it affects many who are lawfully residing in the United States and are entitled to free speech protections.
“Through a series of exceedingly broad, highly invasive, and at times completely incomprehensible restrictions, HB 2106 will muzzle the speech of U.S. citizens and domestic organizations far more effectively than that of the foreign nationals Kansas claims it means to target,” the lawsuit said.
The bill passed unanimously in the Senate and 94-25 in the House. The governor allowed the bill to become law without her signature.
“I support stopping foreign influence in our elections so that Kansans can decide what’s best for Kansas,” Kelly said at the time.
“Federal law already prohibits foreign nationals from contributing to federal, state, or local elections,” she said.
“If the Legislature had crafted something similar for Kansas, I would have signed it. But this bill goes too far.
“I cannot sign a bill that takes away the ability of Kansans and Kansas businesses to support elections if they accept money from overseas for any purpose, not just those related to elections,” Kelly said.
Attorney General Kris Kobach noted on a social media post that the bill passed with bipartisan support in the Legislature.
“Republicans and Democrats agree that foreign corporations and foreign citizens must not be allowed to influence the outcome when KS constitutional amendments are placed before the voters,” Kobach said.
“It is a core principle of self government,” he said.
Kansans for Constitutional Freedom spent about $11 million successfully campaigning for the abortion amendment’s defeat three years ago.
Supporters of the law said that the Sixteen Thirty Fund contributed about $1.6 million in “foreign-backed funds” toward battling the amendment.
The money went to Kansans for Constitutional Freedom, which in 2023 raised $127,000 in revenue and had $136,000 in net assets at the end of the year, a tax document shows.
Micah Kubic, executive director of the ACLU of Kansas, was listed as president on the group’s 2023 tax return.
The Sixteen Thirty Fund has been tied to Swiss billionaire Hansjörg Wyss, whose money has been directed to Democratic causes through a network of nonprofit groups.
NBC News reported that the Sixteen Thirty Fund spent $196 million in 2022 supporting ballot measures on abortion rights and helping Democrats get elected.
“Decisions as significant as amending the constitution belong exclusively in the hands of the citizens of this country and the voters of this state,” Caitlin Sutherland, executive director of Americans for Public Trust, told a House committee last session.
“Foreign nationals have no business influencing ballot measures, and these campaigns should not be allowed to serve as a Trojan horse for foreign interference in the American democratic process,” said Sutherland, former research director for the National Republican Congressional Committee.
The lawsuit comes about a year before Kansas voters will be asked to decide whether Kansas Supreme Court justices should be elected.
It’s a campaign that figures to be very expensive – the abortion amendment campaign cost more than $20 million – and could change the state’s legal system for years.
The lawsuit says the statute will significantly chill protected speech, “making even U.S. citizens reluctant to associate with or collaborate on ballot issue advocacy with anyone who might be believed to be a noncitizen.”
The lawsuit says that the law prohibits U.S. citizens and domestic organizations like Kansans for Constitutional Freedom from engaging in any activity promoting or opposing an amendment to the Kansas Constitution unless they meet certain standards.
They will have to certify that they have not knowingly accepted contributions or expenditures directly or indirectly from a foreign national at any time or for any purpose, the lawsuit said.
They also will have to certify that none of the donors that contributed to them has knowingly accepted, directly or indirectly, any contributions or expenditures from foreign nationals that exceed $100,000 for any purpose within a four-year period.
The lawsuit says the law bars a person from engaging in constitutional advocacy for up
to four years if the person has accepted contributions from a donor who knowingly accepted more than $100,000 in contributions from any foreign national in the past four years.
The statute also prohibits donors from giving money to support or oppose a constitutional amendment for the four-year period after the donor knowingly accepted more than
$100,000 from any foreign national.
“Each of those provisions retroactively imposes a draconian penalty (an outright
prohibition of core political speech) based on conduct that was entirely lawful at the time,” the lawsuit said.
In short, the lawsuit said the statute effectively prohibits anyone who accepts money or property for engaging in such advocacy if they have knowingly accepted contributions or expenditures directly or indirectly from a foreign national of any amount and at any point in time.
“Kansas has adopted a series of impermissibly restrictive, overbroad, and vague restrictions on issue-advocacy speech that will unconstitutionally impede public debate in Kansas about some of the most important policy issues of our times,” the lawsuit said.
The lawsuit was brought in part by the Elias Law Group, which has been involved in a number of election lawsuits against the state of Kansas with varying degrees of success.
Among others, the Elias Group has been involved in a lawsuit challenging a law repealing a three-day grace period for mail ballots to arrive after Election Day.
The law firm also challenged a law that banned falsely representing election officials and a ban on any person not a resident of Kansas from mailing an application for an advance voting ballot.
