Foreign Money Bans for Ballot Measures Could Be Headed to Supreme Court

Kansas will be the first legal battleground in 2025 to decide whether the national trend of banning foreign money from bankrolling ballot measures is legal—a matter that could be on its way to the Supreme Court.

Democrat election lawyer Marc Elias’ firm is taking the lead in the litigation against the state bans on foreign money promoting state ballot initiatives, starting with Kansas. 

The federal lawsuit could affect other states that have passed similar legislation. Just this week, Tennessee Gov. Bill Lee, a Republican, signed the sixth such ban. The previous week, Montana Gov. Greg Gianforte signed a ban, though one that proponents argued was watered down. Earlier this month, the legislatures in Missouri and Texas advanced similar bans. 

Washington, D.C.-based Elias Law Group is representing the plaintiffs, Kansans for Constitutional Freedom, which successfully campaigned against an earlier pro-life ballot measure, the Topeka Capital Journal reported. The Kansas-based firm of Irigonegaray and Revenaugh is also representing the plaintiffs.

The 6th U.S. Circuit Court of Appeals upheld Ohio’s first-in-the-nation ban in a ruling last fall. However, Elias and other opponents of the bans are likely seeking split decisions among circuit courts to force the matter to the U.S. Supreme Court to make an ultimate judgment, said Jason Snead, executive director of the Honest Elections Project. 

“I would like to think there is a clear judicial precedent, but Marc Elias is good at judge-shopping and is looking for a circuit split,” Snead told The Daily Signal. Judge-shopping is a practice where plaintiffs look for particular judges who may be more sympathetic to their cases. “So, there is a very good chance this will wind up before the Supreme Court. But my preference is that every judge will look at the legal merits.”

Snead expects that by the end of all the state legislative sessions, at least eight bans on foreign funding for ballot measures will be enacted. 

Last month, Arkansas Republican Gov. Sarah Huckabee Sanders signed a ban, so did Kentucky Democrat Gov. Andy Beshear and Indiana Republican Gov. Mike Braun. In 2024, Ohio became the first state to enact a ban. 

The Kansas Legislature passed the ban by a broad bipartisan vote, and Democrat Gov. Laura Kelly let it become law without her signature, despite opposition. 

The plaintiffs argue the Kansas law infringes on free speech rights and could affect legal residents.

The law not only prohibits contributions directly from foreign entities for ballot measures but also contributions from U.S. individuals and organizations that received more than $100,000 from foreign nationals in the past four years, which the lawsuit contends is burdensome.

Foreign contributions to political candidates are already illegal, but the Federal Election Commission declined to rule on a 2023 complaint about foreign funding for a Montana ballot measure. The FEC contended that under existing law, it had no power to police foreign donations for ballot initiatives, only donations to candidates. The FEC recommended Congress address the issue.

The Elias Law Group did not respond to an inquiry for this story. 

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