Kansans for Constitutional Freedom v. Kobach
789 F.Supp.3d 1062
D. Kan.2025Background
- The Kansas Legislature enacted HB 2106 (2025), which amended the Kansas Campaign Finance Act to prohibit accepting foreign or foreign-backed funds for advocacy regarding Kansas constitutional amendments.
- Kansans for Constitutional Freedom (KCF), a bipartisan advocacy group active in recent state constitutional amendment campaigns, challenged the law on multiple constitutional grounds before it was to take effect July 1, 2025.
- KCF argued that HB 2106 would severely restrict its and others’ speech and associational rights around ballot issues due to its certification and funding requirements, particularly affecting those who previously received foreign-linked funds.
- KCF sought a preliminary injunction against enforcement, arguing the statute violated the First and Fourteenth Amendments (facial and as-applied challenges).
- The court expedited a hearing before HB 2106’s effective date, but ultimately denied the injunction after concluding KCF was unlikely to succeed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| HB 2106 violates First Amendment by prohibiting protected political speech | HB 2106 is a content-based, speech-prohibitive restriction targeting KCF and similar speakers; violates rights to speak and associate on ballot questions | The state has a compelling interest in preventing foreign influence in democratic self-government; law is narrowly tailored | Court held Kansas likely has a compelling interest; HB 2106 is narrowly tailored and does not fully prohibit protected speech |
| Law imposes liability without a mens rea (mental state) requirement | Absence of intent standard in HB 2106 allows for unconstitutional criminal/civil liability for protected speech | Counterman is limited to true threat cases, not applicable here; Kansas criminal code supplies necessary intent elements | Court found Counterman limited to threats cases; declined to extend its rule; no likely violation |
| Statute is unconstitutionally overbroad and vague | HB 2106 chills vast amounts of protected speech and due to vague terms, fails to provide fair notice | Statute’s scope is properly limited by context and longstanding definitions; no evidence of historic enforcement problems | Court found arguments speculative; statute read in context is not facially overbroad or void for vagueness |
| Statute operates retroactively in violation of due process | Four-year lookback and no time limitation penalize past lawful conduct and advocacy | Statute only operates prospectively per legislative intent and defense assurances; no retroactive effect | Court accepted defense representations, found no live retroactivity issue at this stage |
Key Cases Cited
- Bluman v. FEC, 565 U.S. 1104 (summary affirmance that limiting foreign participation in U.S. political processes is a compelling government interest)
- First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (distinguishes state interests in candidate vs. ballot-issue campaigns for First Amendment purposes)
- NAACP v. Alabama, 357 U.S. 449 (association rights protected under the First Amendment)
- Williams-Yulee v. Fla. Bar, 575 U.S. 433 (underinclusivity does not necessarily defeat a law under strict scrutiny)
- United States v. Alvarez, 567 U.S. 709 (narrow tailoring for restrictions implicating First Amendment interests)
- Hill v. Colorado, 530 U.S. 703 (vagueness doctrine applied to statutes infringing free speech)
- Landgraf v. USI Film Prods., 511 U.S. 244 (disfavor of statutes with retroactive application)