Democratic election lawyer Marc Elias has lost his bid to thwart a Kansas law banning foreign actors from funneling money into state-level ballot initiatives.
In May, the Elias Law Group, the eponymous law firm of the election attorney, jointly filed a federal lawsuit challenging the ban, enacted as H.B. 2106, on behalf of the foreign-funded Kansans for Constitutional Freedom.
This week, an Obama-appointed judge issued a scathing ruling rejecting the plaintiff’s request for a preliminary injunction “premised on an unconstitutional overbreadth theory.”
H.B. 2106, which amends the state’s Campaign Finance Act, prohibits donations from foreign nationals in support or defeat of proposed amendments to the Kansas constitution.
Federal law already forbids foreign interests from contributing to individual candidates and super PACs, but a backdoor exists regarding ballot measures. H.B. 2106, however, closes this foreign influence loophole in Kansas elections.
U.S. Judge Daniel D. Crabtree, an Obama appointee, sided with the state on Monday, the eve of the Kansas law’s effective date.
“Kansas has identified a compelling interest in preventing foreign influence in Kansans’ decisions about its foundational governing document,” Crabtree ruled.
The complainant claimed that the Republican-controlled state legislature overstepped its bounds and infringed on the free speech rights of those who accept foreign-traced funds, whether in favor of or against a specific policy position.
“With the enactment of House Bill 2106 (‘HB 2106’), 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 suit said.
In a 37-page court order upholding the Kansas law, Crabtree pointed to proponent testimony identifying Kansans for Constitutional Freedom, a coalition of “abortion-rights” activists, as the beneficiary of nearly $1.6 million in foreign-tied funds for fiscal 2022.
According to court statements, Crabtree cited, KCF then used those funds to successfully campaign against a post-Roe referendum that would have repealed the constitutional right to an abortion in Kansas.
“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,” Crabtree countered.
The funding in question reportedly came from the Sixteen Thirty Fund, a left-wing lobbying group in Washington funded by Swiss billionaire Hansjörg Wyss, whom Elias has personally represented in the past. Notably, according to 2022 tax filings, the Wyss Foundation paid the Elias Law Group over $61,000 for “consulting services ” that year.
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Dark money hawks say the Sixteen Thirty Fund is a pass-through vehicle for Wyss’s funds. As of December, the Sixteen Thirty Fund, which was KCF’s largest single donor in 2022, had spent more than $130 million influencing the outcome of ballot campaigns across the country.
KCF intends to solicit future financing to support or oppose other amendments to the Kansas Constitution. Ahead of a special election, KCF plans to mount an effort to oppose a proposition that would change the way Kansas selects its state Supreme Court justices.
“KCF still can speak about constitutional amendment issues,” Crabtree wrote. “It just can’t use foreign money to do so.”
Election integrity watchdogs applauded Crabtree’s decision.
“Marc Elias’s loss is a huge win for Kansans and all Americans who want to end foreign influence in our politics,” Americans for Public Trust executive director Caitlin Sutherland said in a statement shared with the Washington Examiner.
Sutherland noted that these consequential measures can change a state’s constitution and influence races up and down the ballot.
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“While most Americans are getting ready to celebrate Independence Day, Marc Elias is in court arguing that progressive groups should be able to launder foreign money into American politics and states should not be able to stop them,” Honest Elections Project executive director Jason Snead told the Washington Examiner. “That is an absurd argument, and the court rightly rejected it.”
Snead said the ruling is “a decisive win for Americans eager to protect ballot measures from foreign interference, and an equally decisive loss for Elias.”
“This is the second time Marc Elias has tried and failed to keep foreign dark money flowing into American ballot measure campaigns,” Snead added. “I look forward to many more states passing laws to safeguard America’s democratic process from foreign dark money.”
Sutherland and Snead testified before the Kansas state legislature earlier this year in favor of H.B. 2106. Their respective organizations also submitted an amicus brief defending the Kansas law.
The latest court defeat marks Elias’s second failed attempt to block a state election security law concerning foreign interference. Last year, Elias joined litigation challenging Ohio’s foreign funding ban. Despite a win in district court, the Sixth Circuit Court of Appeals ultimately ruled that Ohio has a right to prevent foreign nationals from meddling in state politics.