KANSANS FOR CONSTITUTIONAL FREEDOM, v. KRIS KOBACH, et al.,
Case No. 25-2265-DDC-GEB
IN
June 30, 2025
MEMORANDUM AND ORDER
The Kansas Legislature recently decided to limit foreign influence in Kansas constitutional amendment ballot issues. To that end, it passed House Bill 2106 in the spring of 2025. And this provision became law when Kansas‘s Governor neither vetoed nor signed the bill within the specified period.
Plaintiff Kansans for Constitutional Freedom (KCF) takes issue with this bill. It contends that the Legislature overstepped its bounds. KCF asserts that HB 2106 violates protected First Amendment freedoms and Fourteenth Amendment Due Process rights. KCF thus brings facial and as-applied challenges against defendants Kris Kobach, in his official capacity as Attorney General of Kansas, and against the Chairman, Executive Director, and other members of the Kansas Governmental Ethics Commission (KGEC), in their official capacities. KGEC implements and enforces the Kansas Campaign Finance Act, of which HB 2106 is a part. KCF asks the court to enjoin preliminarily any efforts by defendants to implement or enforce HB 2106 before it takes effect on July 1, 2025.
The court held a preliminary injunction hearing on June 23, 2025. Having considered the parties’ briefs and oral arguments, the court denies KCF‘s motion. It concludes that HB 2106 likely survives strict scrutiny and passes constitutional muster. The court also decides that HB 2106 likely isn‘t unconstitutionally invalid for lacking a mens rea requirement, or on overbreadth or vagueness theories. Finally, the parties now appear to agree that HB 2106 only applies prospectively—not retrospectively—permitting the court to defer any injunctive relief based on this concern, at least for now. These conclusions suggest KCF isn‘t likely to succeed on the merits of its claims and so, the court denies preliminary relief. The court explains these conclusions, below, beginning with the relevant background.
KCF is a bipartisan coalition of reproductive rights advocates and allied organizations. Doc. 1 at 9 (Compl. ¶ 22). Formed in 2021, KCF served as the primary organization opposing a 2022 proposed amendment to the Kansas Constitution—a measure that sought to eliminate the constitutional right to an abortion in Kansas. Id. To that end, KCF spent more than $11 million dollars opposing the 2022 amendment. Id. (Compl. ¶ 23). It focused its efforts primarily on individual conversations with Kansas voters. Id. at 16 (Compl. ¶ 59).
KCF intends to utilize its existing resources and solicit future contributions to support or oppose other amendments to the Kansas Constitution. Id. at 9 (Compl. ¶ 24). Most imminently, KCF plans to mount a similar effort opposing the proposed constitutional amendment changing the way Kansas selects members of its Supreme Court, Senate Concurrent Resolution 1611. Id. at 16 (Compl. ¶ 62). KCF alleges it already has secured funding commitments to oppose SCR 1611. Id. at 17 (Compl. ¶ 68). But to succeed in its efforts, KCF alleges it must start months ahead of an election to book advertising time, identify and work with vendors, and develop and implement a voter turnout strategy. Id. (Compl. ¶ 69). KCF contends newly adopted HB 2106 precludes its ability to proceed. Id. at 24–25 (Compl. ¶ 95).
HB 2106 amends
The Kansas Senate Federal and State Affairs Committee conducted hearings on HB 2106 on February 26, 2025. See Doc. 9-3 at 2 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). In the hearings, two proponents of HB 2106—and amici in this case—identified KCF as the recipient of nearly $1.6 million in foreign-tied funds in 2022. Doc. 9-3 at 4 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). KCF used those funds to support its 2022 opposition to Kansas’s proposed abortion amendment. Doc. 9-3 at 4 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). Those foreign-backed funds, proponents testified, came from the Sixteen Thirty Fund—a Washington D.C.-based group purportedly supported by Swiss billionaire Hansjörg Wyss. Doc. 9-3 at 3–4 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). According to proponent testimony, Wyss has contributed generously to the Sixteen Thirty Fund—to the tune of some $280 million over several years. Doc. 9-3 at 3 (Pl. Ex. B)
Given the issues presented here, the court includes a more detailed overview of the statute at issue—as amended—before taking up the legal standard and analysis necessary to decide KCF‘s motion. The court also attaches, as an appendix, the full text of the statute. What follows is a brief primer on HB 2106.
II. HB 2106
The Legislature engrafted HB 2106 into an already extant statutory provision of the Kansas Campaign Finance Act. This provision—
HB 2106 also mandates reporting and certification requirements. The statute requires a report from every person who engages in any constitutional amendment-focused activity—whether promoting or opposing it—and who accepts money or property to do so.
First, the person engaging in the activity must certify that the person hasn‘t accepted knowingly contributions or expenditures—directly or indirectly—from a foreign national.
Second, the engaged person also must certify that no listed donor knowingly accepted contributions or expenditures exceeding $100,000—directly or indirectly—from any foreign national “within the four-year period immediately preceding” the contribution or expenditure date.
Beyond certifications, HB 2106 defines a foreign national. This defined term includes not only a foreign government or political party, but also any foreign entity, any U.S. entity that is majority owned by any foreign national, and any individual who is not a citizen or lawful permanent resident of the United States.
With that brief overview of the pertinent statutory scheme, the court recites the governing legal standard and then, provides its analysis of KCF‘s arguments.
III. Preliminary Injunction Legal Standard
As our Circuit has explained time and again, a preliminary injunction “is an extraordinary remedy, the exception rather than the rule.” Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th Cir. 2019) (quotation cleaned up). To succeed on such a motion, the moving party must establish four things: “(1) that [it‘s] ‘substantially likely to succeed on the merits,’ (2) that [it‘ll] ‘suffer irreparable injury’ if the court denies the injunction, (3) that [its] ‘threatened injury’ (without the injunction) outweighs the opposing party‘s under the injunction, and (4) that the injunction isn‘t ‘adverse to the public interest.” Id. (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). The third and fourth factors “merge” when, as here, the government is the party opposing injunctive relief. Nken v. Holder, 556 U.S. 418, 435 (2009).
A plaintiff seeking preliminary relief must make a “clear and unequivocal showing” on all four requirements. Colorado v. EPA, 989 F.3d 874, 883 (10th Cir. 2021) (quotation cleaned up). But “in First Amendment cases, the likelihood of success on the merits will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks and citation omitted). When “the failure to satisfy one factor is dispositive, a court need not consider the other factors” for preliminary relief. Colorado, 989 F.3d at 890 (declining to consider the remaining factors where plaintiffs failed to show irreparable harm).
As Hobby Lobby‘s general rule predicted, KCF‘s right to preliminary relief turns on its likelihood of success on the merits. The court thus starts—and ends—its analysis with that first factor. Because KCF hasn‘t made a “clear and unequivocal” showing that it is likely to succeed on the merits of its claims, Colorado, 989 F.3d at 883, the court needn‘t reach the other three factors.
IV. Likely to Succeed on the Merits
KCF attacks HB 2106 on multiple fronts. First, it contends the plain text of the statute silences KCF‘s (and other U.S. speakers‘) ballot-issue-related speech. Doc. 9 at 7, 12–20. Second, it argues that HB 2106 severely burdens KCF‘s associational rights. Id. Third, KCF asserts that HB 2106 violates the First Amendment by imposing liability for speech without a mens rea requirement. Id. at 21–22. Fourth, it contends HB 2106 is unconstitutionally overbroad and vague. Id. at 7, 22–28. Finally,
A. First Amendment Violations: Freedoms of Speech and Association
KCF contends HB 2106 operates as a direct prohibition on speech, barring those who have accepted funds from foreign nationals from promoting or opposing Kansas constitutional amendments. Doc. 9 at 12. KCF explains that it can‘t make the certifications HB 2106 requires because it has accepted contributions from donors who accepted money from foreign nationals within the last four years. Id. at 10; see also Doc. 9-3 at 3–4 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). Because KCF can‘t make those certifications, HB 2106 effectively silences its future speech on Senate Concurrent Resolution 1611—the pending proposal to amend the Kansas constitution‘s method for selecting Kansas Supreme Court members. Doc. 9 at 10.
Defendants mitigated some of KCF‘s concerns at the preliminary injunction hearing. There, defendants clarified that any funds accepted before the statute‘s effective date—July 1, 2025—wouldn‘t fall within the ambit of the amended statute. See Doc. 36 at 24, 38 (Hr‘g Tr. 24:18–23; 38:17–21). Defendants also had asserted as much in their response to KCF‘s motion, explaining: “A person like Plaintiff who solicited moneys from foreign nationals to advocate for past constitutional amendments is not prohibited from advocating for future amendments because of those past receipts. Plaintiff would only violate the Act to the extent it accepts foreign moneys for future constitutional advocacy.” Doc. 27 at 22. This clarity on the amended law‘s retroactive potential apparently alleviated KCF‘s most pressing concern—that lawful actions it took in the past bar its future speech. The court addresses the retroactivity question more fully, below. See § IV.D. KCF nonetheless remains concerned about the burdens HB 2106 places on its speech prospectively.
KCF also contends that HB 2106 functions as “a content-based restriction on political speech[.]” Doc. 32 at 9. What‘s more, many other organizations—similar to KCF—likely can‘t convince donors to provide the assurances HB 2106 demands, thus quashing their speech as well. Doc. 9 at 12. In addition, KCF contends that HB 2106 restricts what U.S. citizens may hear, a right that, in KCF‘s view, the First Amendment also protects. Id. at 16. Finally, KCF argues that HB 2106 infringes on its First Amendment associational rights. Id. at 13. It argues HB 2106 “broadly prohibits KCF from freely associating with noncitizens through its certification requirements . . . its imposition of criminal and civil liability on persons who accept funds from foreign nationals, and the threat of investigation.” Id.
1. Strict Scrutiny
Given these restrictions on speech and association, KCF asserts that the court must evaluate HB 2106 under a strict scrutiny standard of review. Doc. 9 at 12–13. Here‘s how KCF reaches that conclusion: Burdens on political speech implicate strict scrutiny. Grant v. Meyer, 828 F.2d 1446, 1452 (10th Cir. 1987) (“[R]estraints on political association and communication, imposed by restrictions on financing of campaigns for ballot measures, are suspect and subject to strict scrutiny.”), aff‘d, 486 U.S. 414 (1988). The same goes for laws that distinguish speech based on content. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (“Content-based laws—those that target speech
In their briefing, defendants never object to a strict scrutiny analysis. Doc. 27 at 16–18. And at the hearing, defendants conceded that, for purposes of the preliminary injunction, the court can apply strict scrutiny. Doc. 36 at 17 (Hr’g Tr. 17:13–25). And so, the court does.2
KCF contends HB 2106 can’t survive strict scrutiny because it neither serves a compelling state interest nor is it narrowly tailored. Doc. 9 at 14–20. Predictably, defendants disagree, and on both fronts. Doc. 27 at 16–18.
a. Compelling State Interest
The compelling interest analysis is straightforward. A state may limit the
In Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), a three-judge panel of the United States District Court for the District of Columbia held that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over U.S. political processes.” Id. at 288 (Kavanaugh, J.). The Supreme Court summarily affirmed the district court panel. Id., 565 U.S. 1104. Bluman means that KCF must demonstrate that the present case meaningfully differs to escape Bluman‘s binding holding. See United States v. Singh, 979 F.3d 697, 711 (9th Cir. 2020) (agreeing with district court that Ninth Circuit is “bound by the Supreme Court‘s summary affirmance in Bluman” because “summary affirmances bind lower courts” to the extent of “the precise issues presented and necessarily decided by those actions”). Otherwise, Bluman‘s conclusion that the government has a compelling interest “in limiting the participation of foreign citizens in activities of American democratic self-government” must govern this court‘s compelling interest analysis. Two factors potentially distinguish between Bluman and this case: Bluman addressed federal, not state, interests and it concerned candidate-related political spending, not ballot-issue-related political spending. The court addresses each factor, in turn, below.
First, Bluman addressed a federal interest in limiting foreign influence: “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows that the United States has a compelling interest . . . in limiting the activities of foreign citizens[.]” 800 F. Supp. 2d at 288 (emphasis added). But KCF never argues that this state/federal distinction makes a meaningful difference in the compelling interest analysis. See generally Doc. 9; Doc. 32. And with good reason. The animating principles behind the federal government‘s compelling interest apply with equal force to the states. Indeed, Bluman establishes this compelling interest, in part, by citing cases where state statutes denied foreign citizens certain rights and privileges. See 800 F. Supp. 2d at 287–88 (first citing Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (upholding California statute); then citing Ambach v. Norwick, 441 U.S. 68 (1979) (upholding New York statute); and then citing Foley v. Connelie, 435 U.S. 291 (1978) (upholding New York statute) (subsequent citations omitted)). So, Bluman‘s foundational groundwork concluding the federal government has a compelling interest assumed a similar interest for the states. Thus, the first potentially distinguishing factor between Bluman and this case is overcome easily. See also OPAWL - Bldg. AAPI Feminist Leadership v. Yost, 747 F. Supp. 3d 1065, 1083 (S.D. Ohio 2024) (“States’ interest in defining their political community is equivalent to the Federal Government‘s interest in defining the national political community.”); Cent. Me. Power Co. v. Me. Comm‘n on Governmental Ethics & Election Pracs., 721 F. Supp. 3d 31, 48 (D. Me. 2024) (“The State, however,
Second, Bluman didn‘t determine the government‘s compelling interest in the context of ballot issues. Bluman held that candidate-related political spending implicated the government‘s compelling interest—not issue-related spending. 800 F. Supp. 2d at 292. Indeed, Bluman explicitly clarifies that its holding “does not address” questions about “issue advocacy and speaking out on issues of public policy” and that its “holding should not be read to support [issue advocacy] bans” on foreign spending. Id. KCF argues that this distinction matters here. See Doc. 9 at 14–15. Defendants say it doesn‘t. Doc. 27 at 18.
KCF distinguishes a government‘s interest in restricting political speech in the candidate context from the ballot-issue contexts. It highlights how the Supreme Court has differentiated candidate elections from ballot measures. Doc. 9 at 14 (first citing First Nat‘l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978); and then citing Citizens Against Rent Control / Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 299 (1981) (“[T]here is no significant state or public interest in curtailing debate and discussion of a ballot measure.”)). KCF contends that issue advocacy—which implicates ideas—needn‘t be free of foreign influence because voters should be free to get information from diverse sources. Doc. 9 at 15–16. It argues that Kansas‘s attempts to restrict foreign influence here thus represent a “paternalistic approach of statutes. . . which restrict what the people may hear.” Id. (quoting Bellotti, 435 U.S. at 791 n.31).
Defendant counters, asserting that political spending on ballot issues is even “closer to democratic self-government” than spending on political candidates. Doc. 27 at 18. That‘s so, they say, because constitutional amendment ballot measures “influence Kansans’ decisions on changes to their ‘fundamental law.” Id. Defendants thus argue that Bluman‘s compelling interest applies with equal force—or even greater force—to ballot issues. Id. Defendants have the better end of this argument. After all, ballot issues implicate democratic self-government even more directly than candidate advocacy. See OPAWL, 747 F. Supp. 3d at 1084 (“Ballot initiatives are perhaps the purest, most democratic ‘process of . . . self-government.’ Ballot initiatives are more directly democratic than candidate elections, in that the people make law for themselves, instead of their elected representatives making it for them.”). And the ballot issues at stake here, state constitutional amendments, shape the state‘s most foundational document.
True, one could decry Kansas‘s approach in HB 2106 as an unnecessary and paternalistic limit on which ideas get to compete in the marketplace of ideas. Perhaps it‘d be better, as KCF suggests, to allow Kansas voters to hear different perspectives—from many diverse sources—and trust the voters to make a choice for themselves. See Bellotti, 435 U.S. at 791–92 (“[T]he people in our democracy are entrusted with the responsibility of judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate.“). But the governing law recognizes a compelling government interest “in limiting the participation of foreign citizens in activities of American democratic self-government[.]” Bluman, 800 F. Supp. 2d at 288. So—whether wise or unwise policy—the prevailing law recognizes Kansas‘s
Bolstering this conclusion are decisions by other courts. They have addressed similar state attempts to limit foreign spending on ballot measures and likewise found a compelling state interest. See, e.g., OPAWL, 118 F.4th at 777–78 (“[E]xcluding non-citizens from certain activities can advance a compelling interest when those activities form part of ‘the process of democratic self-government.’ Campaign contributions and independent expenditures are part of our process of democratic self-government.” (quoting Bluman, 800 F. Supp. 2d at 287)); Minn. Chamber of Com., 707 F. Supp. 3d at 854 (noting challenged provisions include ballot questions and concluding that “[p]reventing foreign influence on Minnesota elections is a compelling state interest“).
In sum, the court thus concludes that Kansas likely has a compelling interest in restricting foreign influence on constitutional amendment ballot activities.
b. Narrowly Tailored
Now the second portion of the strict scrutiny analysis: Kansas must have narrowly tailored HB 2106 for the statute to survive. “[I]f a law targets protected speech in a content-based manner, it is ‘presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests.” Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 1227 (10th Cir. 2021) (second brackets in original) (quoting Nat‘l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018)). “Under strict scrutiny, the government must adopt the least restrictive means of achieving a compelling state interest.” Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 607 (2021) (quotation cleaned up). “The heavy burden of demonstrating that a content-based restriction is the least restrictive means among available, effective alternatives lies with the government.” Peck v. McCann, 43 F.4th 1116, 1135 (10th Cir. 2022) (internal quotation marks and citation omitted). When a state‘s legitimate ends “affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.” Brown v. Ent. Merchs. Ass‘n, 564 U.S. 786, 805 (2011).
KCF contends that HB 2106 doesn‘t use the least restrictive means of accomplishing Kansas‘s compelling state interest because the bill‘s means are both overinclusive and underinclusive. Doc. 9 at 16–20. Defendants’ brief offered no substantive response, making just two conclusory statements about tailoring. Doc. 27 at 16 (“HB 2106 . . . is tailored to those interests“); id. at 18 (“The statute is—and through the administrative process will continue to be—tailored to this interest.“). But defendants met this challenge at the preliminary injunction hearing, presenting a full-throttled, narrow tailoring argument. Start with overinclusivity.
i. Overinclusive
“A statute may fail narrow tailoring for being overinclusive—that is, infringing on more First Amendment rights than is necessary to advance the compelling interest.” OPAWL, 747 F. Supp. 3d at 1088. KCF identifies three qualities of HB 2106 it deems overinclusive. First,
Defendants met those arguments during the hearing, arguing that HB 2106 is narrowly tailored and “exceedingly cautious.” Doc. 36 at 31, 32 (Hr‘g Tr. 31:22–24; 32:9). First, defendants argued, it bars only contributions and expenditures made for the specific purpose of promoting or opposing a Kansas constitutional amendment. Id. at 27–29 (Hr’g Tr. 27:24–29:14). Second, defendants argued that the law only bars contributions and expenditures from foreign nationals. Id. at 31–32 (Hr’g Tr. 31:7–12; 31:25–32:2) (“First [HB 2106] bars only contributions and expenditures from foreign nationals. As I‘ve said, made for that specific purpose. That‘s a lot of narrow tailoring work.“). And, defense counsel noted, the definition of foreign national likewise demonstrates restraint. Id. at 32 (Hr‘g Tr. 32:3–18). It excludes lawful permanent residents, see
Returning to KCF‘s overinclusive arguments, recall that KCF argued, first, that restricting receipt of even one dollar of foreign national funds by a reporting entity and, third, that requiring a dual-tiered certification system, landed HB 2106 in the overinclusive category.
The court isn‘t convinced. Here‘s why. In the narrow tailoring context, “fit matters.” McCutcheon v. Fed. Election Comm‘n, 572 U.S. 185, 218 (2014). That is, if a statute “is poorly tailored to the Government‘s interest . . . it impermissibly restricts participation in the political process.” Id. On the other hand, if the “Government‘s chosen restriction on the speech at issue [is] actually necessary to achieve its interest[,]” then it satisfies the requisite narrow tailoring. United States v. Alvarez, 567 U.S. 709, 725 (2012) (internal quotation marks and citation omitted). In short, there “must be a direct causal link between the restriction imposed and the injury to be prevented.” Id.
Similarly, Kansas‘s interest in preventing foreign influence makes the dual-tiered certification system “actually necessary.” Alvarez, 567 U.S. at 725 (citation omitted). After all, even KCF‘s exhibits suggest that it received a not insignificant amount of foreign-backed funds to oppose Kansas‘s 2022 abortion amendment. See Doc. 9-3 (Pl. Ex. B); Doc. 9-4 (Pl. Ex. C). But those funds didn‘t come directly from a foreign national—they were one-step removed. That is, KCF received funds from another entity—the Sixteen Thirty Fund—which received funds from Swiss billionaire Wyss. Doc. 9-3 at 3–4 (Pl. Ex. B); Doc. 9-4 at 2 (Pl. Ex. C). The dual-certification system aims to reign-in precisely that one-step-removed foreign influence. Again, one could question whether such foreign influence—particularly in the realm of ideas—presents the danger Kansas perceives. But that‘s not an issue for a federal court using federal judicial power to decide. Instead, in the court‘s view, the correct question asks: Is the dual-tiered certification system directly and causally linked to the purported injury of foreign influence in Kansas constitutional amendment advocacy? It is. And, as defendants pointed out, HB 2106 allows some leeway. For instance, it tolerates U.S. entities—even ones with majority foreign ownership—to contribute or expend, within certain confines. Doc. 36 at 32 (Hr’g Tr. 32: 8–16); see also
The court thus concludes KCF‘s first and third overinclusivity arguments likely don‘t disrupt defendants’ narrow-tailoring assertions. Instead, restricting foreign nationals’ contributions and implementing a dual-tiered certification system—both under a cautiously narrow definition of foreign nationals—appear—at this preliminary stage—“actually necessary” to achieve Kansas‘s compelling state interest. Alvarez, 567 U.S. at 725 (citation omitted).
These conclusions leave KCF‘s second overinclusivity challenge: the statute doesn‘t attach a purpose statement to the restricted contributions or expenditures consistently, conceivably sweeping in funds received for any purpose at all. Doc. 9 at 17–28. Defendants argue just the opposite. They argued (at the hearing) that HB 2106 only bars contributions and expenditures from foreign sources made for a specific purpose. Doc. 36 at 27–29 (Hr❜g
The statute spells out that specific purpose in
But it “is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” United States v. Burkholder, 816 F.3d 607, 615 n.6 (10th Cir. 2016) (emphasis in original) (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989)); see also State v. Strong, 527 P.3d 548, 555 (Kan. 2023) (“[C]ourts should consider not only the [statute‘s] words themselves but also their context to bring various provisions of an act into workable harmony, if possible.“). Here, the opening paragraph of the pertinent statute explicitly ties “contributions” and “expenditures” to “any activity promoting or opposing the adoption or repeal of any provision of the constitution of the state of Kansas.”
At bottom, the court concludes at this preliminary stage that HB 2106 likely passes constitutional muster on the overinclusive prong. Kansas has identified a compelling interest in preventing foreign influence in Kansans’ decisions about its foundational governing document. And HB 2106—read in context of the statute‘s entirety—appears, on the arguments before the court at this stage, narrowly tailored to serve that interest. KCF still can speak about constitutional amendment issues. It just can‘t use foreign money to do so. And that‘s a restriction—wise or not—that Kansas gets to make under the governing law.
ii. Underinclusive
A second means to undermine narrow tailoring is by showing underinclusiveness. “[U]nderinclusiveness can raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than favoring a particular speaker or viewpoint.“” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 448 (2015) (quoting Brown, 564 U.S. at 802). And “[u]nderinclusiveness can also reveal that a law does not actually advance a compelling interest.” Id. at 449. That‘s so because a “law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Reed, 576 U.S. at 172 (citation omitted). But underinclusivity—even when it exists—isn‘t necessarily fatal.
“Although a law‘s underinclusivity raises a red flag, the First Amendment imposes no freestanding underinclusiveness limitation.” Williams-Yulee, 575 U.S. at 449 (internal quotation marks and citation omitted). Thus a “State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.” Id. As a consequence, the Supreme Court has “upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests.” Id.
KCF argues that HB 2106‘s most glaring underinclusive feature is that “it does not explicitly prohibit foreign nationals themselves from engaging in their own, direct spending to support or oppose a constitutional amendment.” Doc. 9 at 19 (emphasis in original). Also, KCF argues, “Kansas law contains no provision prohibiting foreign nationals from lobbying Kansas legislators” despite HB 2106‘s concerns about “influencing Kansas voters[.]” Id. (emphasis in original). These points are forceful. But still, HB 2106 nonetheless presents no fatal underinclusivity concerns.
The bill‘s structure—specifically its dual-tiered certification provision in
With that work done, the court moves on to KCF‘s next argument of unconstitutionality
B. First Amendment Violation: Liability for Speech without Mens Rea Requirement
KCF next contends that
The Supreme Court held that, one, “the First Amendment requires proof of a defendant‘s subjective mindset” and, two, that the mens rea required is recklessness. Id. at 72–73. Counterman sustained the necessity of an intent requirement because of “the likelihood that the absence of such a mens rea requirement will chill protected, nonthreatening speech.” Id. The Court explained that without any mens rea requirement—a speaker may “swallow words that are in fact not true threats” out of fear “of mistaking whether the statement is a threat.” Id. at 78 (quotation cleaned up). In short, the absence of a mens rea requirement may generate “self-censorship of speech” and “a cautious and restrictive exercise of First Amendment freedoms.” Id. at 75 (quotation cleaned up).
KCF asks the court to apply Counterman here to support two propositions. First, KCF asks the court to conclude that the absence of a mens rea requirement in section (d) makes it unconstitutional. Doc. 9 at 21–22. Second, KCF contends that the speech restricted by HB 2106 is core First Amendment protected speech, and so the mens rea required here must exceed the recklessness required in Counterman. Id. KCF thus argues that “Kansas may not impose civil or criminal liability for spending related to constitutional ballot issue advocacy without requiring proof of a mental state of ‘purpose or knowledge.‘” Id. at 22 (quoting Counterman, 600 U.S. at 81). And it asserts that the Legislature intentionally omitted the mental state requirement in section (d) as demonstrated by its intentionally including mental state elsewhere in HB 2106. Id. This omission renders section (d) unconstitutional, KCF contends. Id. Defendants respond that Counterman‘s holding “is limited to criminal prosecutions for true threats” and doesn‘t “require scienter in actions for civil liability[.]” Doc. 27 at 20. Defendants are right, and on both fronts.
The Counterman decision itself, and our Circuit‘s subsequent application of it, both suggest a limited holding. Justice Kagan frames Counterman‘s holding as one sounding in the true-threats context. See 600 U.S. at 72 (“The first dispute here is about whether the First Amendment . . . demands that the State in a true-threats case prove that the defendant
KCF asks the court—in an expedited proceeding—to apply Counterman outside the true-threats context and even more, to extend its limitations to civil liability. See Doc. 9 at 21–22; Doc. 32 at 11–12. But KCF identifies no other court or Circuit that has applied Counterman as it suggests. KCF deserves credit for an interesting and creative argument. But the court declines to apply Counterman in such a novel fashion, particularly in the time-pressured and extraordinary context of preliminary relief.
Out of an abundance of caution, though, let‘s imagine that Counterman does apply to this case. Presumably, it would demand a mens rea requirement for criminal liability in
Kansas‘s backstop intent won‘t suffice, KCF argues, because Counterman demands more than recklessness here. Doc. 32 at 12. And the backstop intent might provide just recklessness. See
So, the court concludes KCF isn‘t likely to succeed on the merits of its no-mens-rea theory of unconstitutionality. It asks the court to apply Supreme Court precedent in a novel fashion, reliant, in meaningful part, on dicta. The court declines.
Now, the court turns to KCF‘s next theory of unconstitutionality: overbreadth and vagueness.
C. Unconstitutionally Overbroad and Vague
KCF also argues HB 2106 is facially unconstitutional because it‘s overbroad and vague. Doc. 9 at 22. Defendants’ brief points to the “rigorous” standard applied to facial challenges, identifying its “disfavored” status ““[e]ven in the First Amendment context[.]“” Doc. 27 at 12 (quoting Moody v. NetChoice, LLC, 603 U.S. 707, 723, 744 (2024)). Indeed, a facial challenge is the “most difficult challenge to mount successfully[.]” United States v. Rahimi, 602 U.S. 680, 693 (2024) (internal quotation marks and citation omitted). That‘s so because claims of “facial invalidity often rest on speculation about the law‘s coverage and its future enforcement. And facial challenges threaten to short circuit the democratic process by preventing duly enacted laws from being implemented in constitutional ways.” Moody, 603 U.S. at 723 (internal quotation marks and citations omitted). So, the Supreme Court has “made facial challenges hard to win.” Id.
“The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors, do the laws prohibit or otherwise regulate?” Id. at 724. “The next order of business is to decide which of the laws’ applications violate the First Amendment, and to measure them against the rest.” Id. at 725. “To justify facial invalidation, a law‘s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute‘s lawful sweep.” United States v. Hansen, 599 U.S. 762, 770 (2023). Start with overbreadth.
1. Overbroad
“Overbroad laws ‘may deter or chill constitutionally protected speech,’ and if would-be speakers remain silent, society will lose their contributions to the ‘marketplace of ideas.‘” Id. at 769–70 (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)). “If the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep,’ then society‘s interest in free expression outweighs its interest in the statute‘s lawful applications, and a court will hold the law facially invalid.” Id. at 770.
Here, KCF emphasizes the “vast amounts of protected speech” proscribed by HB 2106. Doc. 9 at 23. It argues that the plain text of
Recall that the court concluded the statute‘s context—specifically the long extant section (a)—narrows the scope of the contributions and expenditures at issue.
In short, this case is a poster child for the dangers of facial invalidation premised on speculation. KCF envisions a breathtakingly broad law. And, to be fair, had KCF‘s interpretation of HB 2106 proved accurate, it would‘ve had a very persuasive case. But the statute—read in context and coupled with defendants’ strictly-prospective assurances—suggest a law whose “plainly legitimate sweep” outweighs any protected speech prohibitions. Hansen, 599 U.S. at 770 (quoting United States v. Williams, 553 U.S. 285, 292 (2008)). And so, the court rejects KCF‘s bid for a preliminary injunction premised on an unconstitutional overbreadth theory.
2. Vague
KCF also argues that HB 2106 is invalid, “facially and as applied, because multiple of its provisions are unconstitutionally vague in violation of due process.” Doc. 9 at 24. “The void-for-vagueness doctrine requires that statutory commands provide fair notice to the public. This is especially true for election speech provisions that impinge on First Amendment rights.” Wyo. Gun Owners, 83 F.4th at 1233. A court may conclude a statute is unconstitutionally vague “for either of two independent reasons. First, if it fails to
Here, KCF‘s vagueness arguments focus primarily on definitions for key terms used in the Kansas law. Doc. 9 at 24–28. KCF asks, for instance, how the definitions of “contribution,” “expenditure,” and “independent expenditure” in the overarching Kansas Campaign Finance Act—
KCF aptly has identified the looser-than-ideal drafting in HB 2106. One wonders how KCF (or any other participant) can accept an expenditure. But, as already discussed, see § IV.A.1.b.i; IV.C.1, the explicit language in HB 2106‘s initial paragraph cures KCF‘s concerns about the definition for “contribution” and “expenditure.” See
As defendants suggest, the offending language appears to have given “fair notice to the public” for the past 38 years. Wyo. Gun Owners, 83 F.4th at 1233. Defendants explained it this way at the hearing:
Section 4180 has been in effect . . . since 1987. In fact, until now it‘s been a pretty sleepy statute. So 4180 has always let folks know who are engaged in the activity . . . of promoting or opposing [an] amendment or repeal of a section of the Kansas constitution [about] reporting requirements for contributions and expenditures.
Doc. 36 at 22 (Hr‘g Tr. 22:16–23). What‘s more, KCF never identifies any lack-of-notice incidents or “arbitrary [or] discriminatory enforcement[,]” Hill, 530 U.S. at 732, over the past four decades that would undercut defendants’ “sleepy statute” contentions. Doc. 36 at 22 (Hr‘g Tr. 22:18–19). Defendants argued that HB 2106 simply “piggybacks” on the already extant statute, adding “requirements aimed at barring foreign money.” Id. (Hr‘g Tr. 22:24–25). In short, HB 2106 splices itself into the long history of existent—and uncontested—reporting requirements, followed without issue for years.
One final challenge to HB 2106 remains: KCF fears defendants will implement it retroactively. The court addresses this final concern, below.
D. Fourteenth Amendment Violation: Retroactively Punishing Then-Lawful Content
“[S]tatutory retroactivity has long been disfavored[.]” Landgraf v. USI Film Prods., 511 U.S. 244, 268 (1994). “The Due Process Clause . . . protects the interests in fair notice and repose that may be compromised by retroactive legislation[.]” Id. at 266. And “a justification sufficient to validate a statute‘s prospective application under the [Due Process] Clause ‘may not suffice’ to warrant its retroactive application.” Id. (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976)). Adding more cause for concern, legislatures may “use retroactive legislation as a means of retribution against unpopular groups or individuals.” Id. KCF seems to believe that‘s what the Legislature has done here. See Doc. 1 at 18 (Compl. ¶ 72); Doc. 9 at 8 (“HB 2106 is a direct response to KCF‘s 2022 advocacy efforts.“).
To assess retroactivity, “the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 269–70. Under Kansas law, a new statute is presumptively prospective in nature, unless the legislature clearly overcomes that presumption. In re Hunt, 82 P.3d 861, 870 (Kan. Ct. App. 2004) (“In determining whether the provisions of any statute apply prospectively or retroactively, the general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise.” (citing In re Tax Appeal of Alsop Sand Co., 962 P.2d 435 (Kan. 1998))).
In its briefing, KCF argued that HB 2106 is retroactive. Doc. 9 at 29. It contended that HB 2106 “bars persons from engaging in constitutional advocacy for up to four years” based on
Defendants clarified their position at the hearing. They reframed the four-year look-back
[T]here‘s been no positive obligation on you up until this date. I‘m saying that the effective date of the law is July 1st[, 2025]. There‘s a positive obligation on you as of July 1st to ask the question: Am I taking foreign money as defined here? Before that there was not. . . . [T]he retroactivity issue is . . . not about punishing plaintiff for what they‘ve done in their past when it was perfectly legal. It‘s about helping them know what they can and cannot take after July 1st.
Doc. 36 at 24, 38 (Hr‘g Tr. 24:18–23; 38:17–21). It seems defendants’ assurances satisfied KCF. Later in the hearing, KCF essentially abandoned its retroactivity argument—it acknowledged that the parties agree on the issue and redoubled its efforts on the prospective front:
I think from the retroactivity point there‘s been a lot of discussion, but the parties agree it can‘t be applied retroactively. So I don‘t really know why we‘re disputing that so much. Like, our purpose is to show that it can‘t be applied retroactively, and they seem to agree. So I think that‘s good. The real issue is whether it can be applied prospectively[.]
Id. at 39 (Hr‘g Tr. 39:13–20).
The parties thus appear to agree that applying HB 2106 retroactively in any sense would violate due process. And defendants have represented to the court that they will apply HB 2106 strictly prospectively, starting July 1, 2025. Relying on defendants’ representations and KCF‘s abandonment, the court stays its hand. It thus concludes enjoining retroactive applications of HB 2106 is unnecessary at this time. But defendants should know—and it seems they do—that any retroactive effect could present substantial due process problems. If future circumstances displace defendants’ assurances, KCF can renew its due process challenge. And the court would return promptly to this issue.
Before the court recites its conclusions, it addresses one final matter—defendants’ pending Motion to Dismiss (Doc. 28) and their argument for prudential unripeness.
V. Prudential Ripeness
Defendants have moved to dismiss—or hold this case in abeyance—on prudential ripeness grounds. Doc. 28 at 2. Defendants note that the KGEC hasn‘t promulgated rules and regulations interpreting HB 2106 yet. Id. And so, defendants argue, federal intervention now would be premature, usurping KGEC‘s delegated authority and raising substantial federalism concerns. Id.
Both parties engaged in some level of argument about prudential ripeness in their preliminary injunction briefing. See Doc. 27 at 12–16; Doc. 32 at 6–9. But both parties also have filed separate briefs on the issue. Doc. 28; Doc. 33. And at the time of this Order, this briefing isn‘t complete yet—defendants still may file a reply. The court has expedited this Order, at KCF‘s request, to decide its Preliminary Injunction Motion (Doc. 9) before HB 2106‘s July 1, 2025, effective date. And so, the court won‘t delay this Order until the prudential ripeness briefing concludes. Nor will it rule the Motion to Dismiss (Doc. 28) prematurely.
Second, facial challenges “are generally considered to be strictly legal questions that do not involve the application of the law in a specific factual setting.” Awad v. Ziriax, 670 F.3d 1111, 1124 (10th Cir. 2012) (quotation cleaned up). “And even when a case presents an as applied challenge, it is fit for judicial review if ‘the facts of the case are relatively uncontested.‘” Koontz v. Watson, 283 F. Supp. 3d 1007, 1017 (D. Kan. 2018) (quoting Kan. Jud. Rev. v. Stout, 519 F.3d 1107, 1118 (10th Cir. 2008)). KCF brings constitutional challenges, both facial and as applied. And defendants haven‘t identified any contested facts in this case. The court thus considers the case fit for judicial review. This is admittedly a truncated analysis, focusing only on the first of two prudential ripeness prongs. But it suffices to explain the court‘s decision—at the preliminary injunction stage—to proceed without any prudential ripeness concerns. The court will complete a more fulsome analysis after it has opportunity to consider the parties’ full briefing on the issue.
VI. Conclusion
The court concludes KCF is unlikely to succeed on the merits of its claim. Subjecting HB 2106 to strict scrutiny, the court decides that Kansas likely has a compelling interest in limiting foreign influence in its constitutional amendment ballot issue elections. And defendants have established sufficiently at this preliminary stage that HB 2106 is narrowly tailored. The court is unpersuaded that KCF‘s mens rea argument—premised as it was on a true-threats case—applies as argued. And KCF‘s speculative interpretation of HB 2106—along with the long extant portions of
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Kansans for Constitutional Freedom‘s Motion for Preliminary Injunction (Doc. 9) is denied.
IT IS SO ORDERED.
Dated this 30th day of June, 2025, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge