WinRed, Inc. v. Keith M. Ellison

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1238
___________________________
WinRed, Inc.
Plaintiff - Appellant
v.
Keith M. Ellison, in his official capacity as Attorney General for the State of
Minnesota; Letitia James, in her official capacity as Attorney General for the State
of New York; William Tong, in his official capacity as Attorney General for the
State of Connecticut; Brian E. Frosh, in his official capacity as Attorney General
for the State of Maryland
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: October 18, 2022
Filed: February 7, 2023
____________
Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.

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The district court1 dismissed WinRed, Inc.’s request for a declaratory
judgment and preliminary injunction. This court “review[s] de novo the grant of a
motion to dismiss for failure to state a claim . . . , accept[ing] the factual allegations
in the complaint as true and draw[ing] all reasonable inferences in the plaintiff’s
favor.” Rydholm v. Equifax Info. Servs., 44 F.4th 1105, 1108 (8th Cir. 2022).
Having jurisdiction under 28 U.S.C. §§ 1291 and 1331, this court affirms.
I.
WinRed, a “conduit” political action committee (PAC), centralizes donations
to Republican-affiliated candidates and committees. WinRed helps them set up a
WinRed.com webpage where donors contribute. WinRed collects and distributes
the earmarked contributions. WinRed.com’s technical and maintenance services are
at least partly performed by a separate entity, WinRed Technical Services, LLC
(WRTS). The relationship between WinRed and WRTS is not clear, but this court
accepts WinRed’s affidavit that it operates exclusively in the domain of federal
elections. R. Doc. 24 at ¶ 6.2 See Tholen v. Assist Am., Inc., 970 F.3d 979, 982
(8th Cir. 2020) (standard of review).
As a federal PAC, WinRed must comply with the Federal Election Campaign
Act (FECA). 52 U.S.C. §§ 30101 et seq. Originally passed in 1971, FECA
consolidated federal election law, setting uniform requirements for many aspects of
federal elections. See FEC, The First 10 Years 1–2 (Apr. 14, 1985), available at
https://www.fec.gov/resources/cmscontent/documents/firsttenyearsreport.pdf (last
visited Dec. 12, 2022). Congress amended FECA in 1974, creating the Federal
Election Commission (FEC) to enforce the act, promulgate rules, and issue advisory
1 The Honorable John R. Tunheim, then Chief Judge of the United States
District Court for the District of Minnesota, now United States District Judge for the
District of Minnesota.
2 Documents from the district court case, WinRed, Inc. v. Ellison, No. 21-1575-
JRT-BRT (D. Minn. Jan. 26, 2022), will be cited as “R. Doc.”

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opinions about FECA’s scope and application. FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27, 37 (1981). FECA and its regulations require
WinRed register with the FEC, regularly disclose certain data, and include certain
disclaimers on its public communications. 52 U.S.C. §§ 30103, 30104; 11 C.F.R.
§§ 110.11, 108.7. The parties do not dispute that WinRed has always complied with
its FECA obligations.
According to news reports, WinRed’s involvement in the 2020 election
angered some donors and overdrafted others. The reports accused Donald Trump
and other WinRed candidates of “steer[ing] supporters into unwitting donations”
with pre-checked recurring-donation checkboxes. See Shane Goldmacher, How
Trump Steered Supporters into Unwitting Donations, N.Y. Times, Apr. 3, 2021,
available at https://www.nytimes.com/2021/04/03/us/politics/trump-donations.html
(last visited Dec. 23, 2022); Evie Fordham, Trump Campaign and Allies Refund
$122M to WinRed Donors: Report, FoxNews, Apr. 4, 2021, available at
https://www.foxnews.com/politics/trump-campaign-refund-winred-donors-2020
(last visited Dec. 23, 2022). According to one report, donations would be repeatedly
withdrawn from consumers’ accounts unless they “wade[d] through a fine-print
disclaimer and manually uncheck[ed] a box to opt out,” a process complicated by
“lines of text in bold and capital letters that overwhelmed the opt-out language.”
N.Y. Times, Unwitting Donations, supra. Consumers complained to WinRed,
campaigns, banks, credit card companies, and law enforcement entities like the FEC
and state attorneys general. See id.
Attorneys General from Minnesota, Connecticut, Maryland, and New York
launched a joint investigation. On April 29, 2021, the New York Attorney General,
on behalf of the four Attorneys General, sent WinRed a letter expressing concern
about consumers being “charged for regular contributions that they did not intend
and could not afford.” Letters Between Attorneys General and WinRed, R. Doc.
1-1 at 2 [hereinafter “Joint AG Communication”].

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The letter noted the offices’ “significant experience with pre-checked
solicitations”; expressed a belief that such practices “can be inherently misleading”;
and explained: “For that reason, various state and federal laws specifically require
businesses to provide clear and conspicuous disclosures to consumers before an
automatic renewal or additional purchase can take effect.” Id. It requested
documents and information “[i]n order to better understand WinRed’s practices and
ensure that consumers in [the four represented] states are not subject to deceptive or
unlawful solicitation practices.” Id.
WinRed declined to comply with the request. It claimed that because WinRed
is a PAC engaged only in federal elections, its fundraising practices are governed
exclusively by FECA, not state law. Id. at 6–7. When the Attorneys General
reasserted authority to investigate and enforce their state consumer-protection laws,
WinRed sued in federal court. It sought a declaratory judgment and permanent
injunction preventing the Attorneys General from (1) “investigat[ing] WinRed’s
activities with respect to contributions”; and (2) “bring[ing] a deceptive-practice
action against it for those activities.” Complaint, R. Doc. 1 at ¶ 7.
The Attorneys General then issued subpoenas and civil investigative demands
(CIDs). Minnesota’s CID asserted that Attorney General Keith M. Ellison had
reasonable grounds to believe that WinRed violated Minnesota Statutes sections
325F.69 (Prevention of Consumer Fraud) and 325D.44 (Deceptive Trade Practices).
Demand for Answers to Interrogatories and Request for Documents, R. Doc.
24-1 at 1 [hereinafter “Minnesota CID”]. Specifically, General Ellison believed
WinRed had “use[d] certain practices with the tendency or capacity to deceive
consumers, or to create a likelihood of confusion or misunderstanding, including
WinRed’s use of pre-checked boxes or similar options to lock-in donations on a
recurring basis.” Id.
The CID made ten document requests, many focused on pre-checked
recurring-donation boxes, the webpages that contained them, and any disclosures or

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disclaimers from the webpages.3 WinRed sought to preliminary enjoin enforcement
of the subpoenas and CIDs.
The Attorneys General moved to dismiss for lack of personal jurisdiction and
failure to state a claim. The U.S. District Court for the District of Minnesota found
that it lacked personal jurisdiction over the out-of-state Attorneys General and
granted their motion to dismiss. It then granted the Minnesota Attorney General’s
motion to dismiss, finding that FECA does not preempt Minnesota’s consumer-
protection law as applied to WinRed. R. Doc. 51. WinRed appeals only the
Minnesota decision.
II.
WinRed ask this court to declare General Ellison’s investigation preempted
and enjoin it.
Preemption claims typically focus on state laws or enforcement actions, not
investigations. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)
(“[S]tate law that conflicts with federal law is without effect.”), citing M’Culloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). Cf. Bunning v. Kentucky, 42 F.3d
1008, 1012 (6th Cir. 1994) (an ostensible investigation could be preempted because
it “constituted an attempt to impose [Kentucky law]”).
Federal law’s supremacy can render state investigations unlawful in one of
two ways. First, federal law might provide a substantive right to be free from state
3 Document Request 4, for example, requested “[d]ocuments representing
WinRed’s website as it appears to donors and other users[] for all web pages that
WinRed has hosted or used to solicit donations that included a pre-checked box for
recurring or additional donations, including all disclosures made to potential donors
about recurring donations and any other text and images that accompany the pre-
checked boxes.”

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investigation. See Major League Baseball v. Crist, 331 F.3d 1177, 1181 (11th Cir.
2003). WinRed does not make this claim.
WinRed argues instead that federal law insulates it from potential
enforcement actions, and state law prohibits investigations where no enforcement
action could be brought. It acknowledges that Minnesota law authorizes
investigations when General Ellison has “reasonable ground to believe that any
person has violated, or is about to violate, [Minnesota’s consumer-protection] laws.”
Minn. Stat. § 8.31 Subd. 2.4 But it claims that FECA immunizes its federal
fundraising-related activities from state-law sanction. And because FECA preempts
applying Minnesota consumer-protection laws to WinRed’s conduct, the argument
goes, “as a matter of law, General Ellison can have no ‘reasonable ground to believe’
that [WinRed] is violating his State’s law.” WinRed concludes that the investigation
is unlawful. See WinRed’s Reply Brief at 8 (“[W]ithout a ‘reasonable ground to
believe’ that WinRed, Inc. is violating Minnesota law, General Ellison has no
authority whatsoever to investigate WinRed, Inc.’s federal fundraising-related
practices for a potential violation of Minnesota law.”); id. (“WinRed, Inc. is not
challenging General Ellison’s ability to impose one remedy instead of another.
WinRed, Inc.’s point, in contrast, is that FECA preempts General Ellison from
imposing any liability whatsoever based on WinRed, Inc.’s federal fundraising-
related activities.”); id. at 7–8 (“WinRed, Inc.’s argument . . . is premised on General
Ellison’s determination that there currently exists a ‘reasonable ground to believe’
4 Because a Minnesota statute requires General Ellison to have “a reasonable
ground to believe” a law was violated, Minnesota law determines what constitutes a
“reasonable ground” See Progressive N. Ins. Co. v. McDonough, 608 F.3d 388,
390 (8th Cir. 2010) (“This court is bound by decisions of the highest state court when
interpreting state law.”). The Minnesota Supreme Court would find that General
Ellison has no reasonable belief of a Minnesota law violation if FECA, through
preemption, renders Minnesota law “without effect.” Cipollone, 505 U.S. at 516.
See Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001) (“Where
the legislature’s intent is clearly discernable from plain and unambiguous language,
. . . courts apply the statute’s plain meaning.”).

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that WinRed, Inc.’s federal fundraising-related practices might give rise to State
consumer-protection liability.”); WinRed’s Opening Brief at 21 (“Because
WinRed, Inc.’s activities are fully consistent with federal law, as vetted by federal
regulators, General Ellison’s state consumer-protection enforcement would add to,
and therefore conflict with, the unified system of federal campaign-finance
regulation that Congress created.”). See also Major League Baseball, 331 F.3d at
1188 (holding that “an investigation predicated solely upon legal activity does not
pass muster” because Florida law “requires that the Attorney General ‘suspect’ that
a violation has taken place before an investigation may commence”).5
Two questions remain: First, what Minnesota law does General Ellison claim
to “reasonably believe” WinRed violated? Second, does FECA preempt application
of Minnesota law to WinRed’s allegedly violative conduct?
III.
General Ellison is investigating potential violations of Minnesota’s consumer-
protection law. That law prohibits “any fraud, false pretense, false promise,
misrepresentation, misleading statement or deceptive practice” and defines
“deceptive practice” to include misrepresenting certain facts or engaging in “any
other conduct which similarly creates a likelihood of confusion or of
misunderstanding.” Minn. Stat. § 325F.69; Minn. Stat. § 325D.44.
5 This court’s jurisdiction is not in doubt. Whether state action is preempted
by a federal statute “presents a federal question which the federal courts have
jurisdiction under 28 U.S.C. § 1331 to resolve. Shaw v. Delta Air Lines, 463 U.S.
85, 96 n.14 (1983). See also Bunning, 43 F.3d at 1011 (finding a district court’s
jurisdiction to enjoin an investigation “clear”).

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Minnesota consumer-protection law does not, as WinRed claims, mandate
disclaimers6 on fundraising sites. To start, the statutory text contains no disclaimer
requirement. Id. See also Manselle v. Krogstad (In re Krogstad), 958 N.W.2d 331,
334 (Minn. 2021) (statutory interpretation begins with the statutory text).
WinRed gives two reasons to look beyond the statutory text. Neither
succeeds. It first claims that the initial letter sent on General Ellison’s behalf by the
New York Attorney General is an “admission” that “[Minnesota] state law
specifically requires businesses to provide clear and conspicuous disclosures” before
enrolling them in automatic donations.
This misreads the initial letter. In the key paragraph WinRed emphasizes, the
Attorneys General say:
Our offices have significant experience with pre-checked
solicitations and other forms of “negative option”
marketing to consumers. We believe that such
solicitations can be inherently misleading, and result in
consumers making unwanted and unintended purchases.
For that reason, various state and federal laws specifically
require businesses to provide clear and conspicuous
disclosures to consumers before an automatic renewal or
additional purchase can take effect, and define the failure
to do so as a deceptive practice.
Joint AG Communication at 2 (emphasis added)
6 This opinion uses the term “disclaimers” to mean additional bits of
information contained alongside communications. This usage comports with 11
C.F.R. § 110.11, which discusses “disclaimers” that must be included on political
advertisements. General Ellison sometimes uses the word “disclosures” instead,
which might cause confusion with FEC-mandated disclosures of receipts and
expenditures. See 11 C.F.R. 108.7.

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Contrary to WinRed’s interpretation, the letter does not purport to describe
Minnesota law. It just makes a general statement about “various state and federal
laws” that require disclaimers. Id.
That is not the only reason to reject WinRed’s claim that General Ellison
“expressly tied his investigation” to disclaimers through the initial letter. He neither
penned nor signed it. In fact, neither of the documents bearing his seal—the second
joint Attorneys General letter and Minnesota’s CID—mentions any state mandate to
use “clear and conspicuous” disclaimers.
WinRed implies a second reason to believe disclaimer mandates underly
General Ellison’s investigation. General Ellison must be investigating a disclaimer
law, the reasoning goes, because his CID demands to see WinRed’s disclaimers. See
Minnesota CID at 9 (asking to see “WinRed’s website as it appears to donors . . .
including all disclosures made to potential donors about recurring donations”); id. at
10 (requesting “any representations about the use of pre-checked boxes or other
methods for securing recurring donations [and] the disclosures made to donors about
the use of recurring donations”); id. (requesting “user interface testing, user stories,
or analyses of the content and layout of solicitations using pre-checked donation
boxes”).
WinRed overreads the CID. General Ellison’s request to see any included
disclaimers does not establish that Minnesota law mandates disclaimers.
Investigations can cover disclaimers without a mandatory-disclaimer law. Clear and
conspicuous disclaimers about auto-recurring donations might have legitimated
otherwise-illegal solicitation tactics. But that would be because disclaimers prevent
the “confusion” and “misunderstanding” that Minnesota prohibits. Minn. Stat. §
325D.66. And General Ellison’s request to see WinRed’s disclaimers is a way to
explore whether WinRed illegally caused confusion.7
7 Consider a hypothetical law that prohibits lying about the metallic
composition of commemorative coins. If consumers complained that a fraudster

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Minnesota law does not require disclaimers.8 It prohibits “misrepresent[ing],
misleading,” or using “deceptive practices . . . [that] create[] a likelihood of
confusion or of misunderstanding.” Minn. Stat. § 325F.69; Minn. Stat. § 325D.44.
FECA preempts General Ellison’s investigation only if it prohibits Minnesota from
enforcing its deceptive-practice ban against WinRed’s online solicitations.
IV.
The Supremacy Clause designates federal law as “the supreme Law of the
Land.” U.S. Const. art. VI, cl. 2. “[S]tate law must yield” when Congress intends
to preempt it. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).
distributed brochures advertising “REAL GOLD COINS” but instead delivered
cheap brass ones, an attorney general could investigate. The attorney general could
first obtain the brochures, maybe with a CID. A thorough and fair CID would also
request “all disclaimers made to potential customers.” After all, maybe the
complaining consumers simply overlooked something—maybe the brochure did not
say “REAL GOLD COINS” but instead read “REAL GOLD COINS* *(appearance
of real gold only, actual coins are brass).” If that were the case, the seller would not
have lied about the coins’ metallic composition and would not have violated the law.
The fact that including disclaimers would have made an otherwise illegal
advertisement legal does not transform the anti-lying law into a disclaimer mandate.
Nor would an investigatory request for disclaimers imply that the law is a disclaimer
mandate—asking for disclaimers would be a good-faith inquiry into the legality of
the seller’s advertisement.
8 To the extent WinRed seeks to enjoin only General Ellison’s future ability to
impose disclaimer requirements, rather than his entire investigation, that claim is not
ripe, as the separate opinion correctly notes. Disputes about “future events that may
never occur” are “not fit for judicial decision.” Gonzalez v. United States, 23 F.4th
788, 791 (8th Cir. 2022) (quotation marks omitted), quoting Texas v. United States,
523 U.S. 296, 300 (1998). Disclaimer mandates may never occur. Minnesota law
does not require them, and WinRed does not allege that General Ellison has directed
it to include disclaimers. If he does so, WinRed can challenge that directive through
appropriate channels. See Gonzalez, 23 F.4th at 791(dismissing an unripe claim).

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See also New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 655 (1995) (“[P]re-emption claims turn on Congress’s intent.”).
As relevant here, Congress can preempt state law in one of three ways: (1)
expressly though statutory language like a preemption clause; (2) implicitly when a
state law “conflict[s] with” or stands as an obstacle to federal law; or (3) implicitly
by “occup[ying] a legislative field,” leaving no room for state law. Weber v.
Heaney, 995 F.2d 872, 875 (8th Cir. 1993), citing Cipollone, 505 U.S. at 516 and
Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
Interpreting an express preemption provision, this court “focus[es] on the
plain wording of the clause, which necessarily contains the best evidence of
Congress’ pre-emptive intent.” Watson v. Air Methods Corp., 870 F.3d 812, 817
(8th Cir. 2017), quoting Puerto Rico v. Franklin Cal. Tax-Free Tr. 136 S.Ct. 1938,
1946 (2016). For implied preemption, courts apply a presumption against
preemption in “field[s] traditionally occupied by the States.” Altria Grp., Inc. v.
Good, 555 U.S. 70, 77 (2008). See also Freightliner Corp. v. Myrick, 514 U.S. 280,
288 (1995) (explaining that an express preemption clause “supports a reasonable
inference” that Congress “did not intend to pre-empt other matters”).
A.
FECA does not expressly preempt General Ellison’s investigation. Its
express preemption clause supersedes “any provision of State law with respect to
election to Federal office.” 52 U.S.C. § 30143 (2020) (formerly codified at 2 U.S.C.
§ 453 (1974)). FEC regulation defines the statute’s scope. 11 C.F.R. § 108.7. It
categorizes state law into three preempted areas and six non-preempted areas:
(b) Federal law supersedes State law concerning the—
1) Organization and registration of political committees
supporting Federal candidates;

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2) Disclosure of receipts and expenditures by Federal
candidates and political committees; and
3) Limitation on contributions and expenditures
regarding Federal candidates and political committees.
(c) The Act does not supersede State laws which provide for the
1) Manner of qualifying as a candidate or political
party organization;
2) Dates and places of elections;
3) Voter registration;
4) Prohibition of false registration, voting fraud, theft
of ballots, and similar offenses;
5) Candidate’s personal financial disclosure; or
6) Application of State law to the funds used for the
purchase or construction of a State or local party
office building to the extent described in [a different
provision].
Id. Congress repeatedly reviewed and declined to displace this regulation. Weber,
995 F.2d at 87. Courts consider the FEC’s category-based preemption regulation as
definitive evidence of the scope of FECA’s preemption clause. See, e.g., Weber,
995 F.2d at 876 (finding the regulation tantamount to “a further express preemption”
and “persuasive evidence that [the agency’s] interpretation is the one intended by
Congress”); Bunning, 42 F.3d at 1012 (“The interpretive regulation, 11 C.F.R. §
108.7, sets forth the statute’s preemptive scope in accordance with the statute’s plain
language and its legislative history.”), citing H.R. Doc. No. 95-44, 95th Cong., 1st
Sess. 51 (1977) (report—which is a near carbon-copy of the FEC’s final rule—of
the House Committee that authored the preemption clause); Teper v. Miller, 82 F.3d
989, 995 (11th Cir. 1996) (calling the regulation “more definitive[] evidence of
Congress’s intent” than decontextualized statutory language). See also D.S.C.C.,
454 U.S. at 37 (“[T]he [FEC] is precisely the type of agency to which deference
should presumptively be afforded.”).

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Minnesota’s consumer-protection law fits into the fourth category of statutes
not superseded by FECA, laws prohibiting “false registration, voting fraud, theft of
ballots, and similar offenses.” 11 C.F.R. § 108.7(c)(4).
In a 1981 advisory opinion, the FEC confirms that the phrase “similar
offenses” in this category is construed broadly enough to cover Minnesota’s
consumer-protection law. FEC Advisory Op. 1981-27 (July 2, 1981). There, the
FEC opined that a city’s littering prohibition still applied to political flyers even
though the city could not mandate an anti-littering warning be printed on the flyers.
Id. at 2. Citing subsection (c)(4)’s prohibition on fraudulent voting, registration, and
“similar offenses,” the FEC “ma[de] clear” that state and local regulations like the
anti-littering ordinance were “outside the purview of [FECA’s preemption clause],
since they do not relate to identifying the sponsor of the advertising and thus are not
integral to the disclosure purpose that undergirds [FECA’s disclaimer
requirements].” Id.
If “similar offenses” encompasses anti-littering ordinances, as the advisory
opinion indicates, then it also includes anti-deceptive-practices laws, which are even
more “similar” to the fraudulent conduct expressly identified in 11 CFR 108.7(c)(4).
WinRed proposes a new category of preempted conduct—preemption
whenever state law regulates a federal PAC’s “engage[ment] in federal fundraising-
related activity.”
This proposal is textually unsupported. The regulation cabins preemption to
two narrow finance-related categories: “[d]isclosure of receipts and expenditures”
and “[l]imitation on contributions and expenditures regarding Federal candidates
and political committees.” 11 C.F.R. § 108.7(b)(2)–(3). It does not bring
everything fundraising-related under FECA’s umbrella. Cf. Galliano v. U.S. Postal
Serv., 836 F.2d 1362, 1371 (D.C. Cir. 1988) (Ruth Bader Ginsburg, J.) (finding some
solicitations for political contributions outside of FECA’s exclusive domain).

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WinRed’s “fundraising-related” standard is also too broad. A PAC’s
“engag[ing] in federal fundraising-related activity” cannot remove it from all state
regulation. That position would permit “requesting” donations at gunpoint—so long
as the money went to a federal election—because FECA does not prohibit assault.
True, WinRed expresses “no concern” with being subject to state tort law. But its
broad interpretation of the preemption regulation would immunize it from many
generally applicable state laws. Minnesota’s deceptive-practice prohibition is not
preempted by 11 C.F.R. § 108.7.
Alternatively, WinRed urges this court to ignore the FEC’s regulation and
adopt a narrow, literal reading of the preemption clause. FECA’s preemption clause
supersedes “any provision of State law with respect to election to Federal office.”
52 U.S.C. § 30143. Emphasizing “with respect to,” WinRed argues that because its
investigated conduct “concerns” and “relates to” federal elections, the preemption
clause applies.
WinRed is right to begin with the statutory text, but it is wrong to end there.
See United States v. Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013) (affirming that
this court “look[s] beyond” statutory text when application of the plain language
“will produce a result demonstrably at odds with the intentions of its drafters”),
citing United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989).
This court has already rejected WinRed’s reading. In Reeder v. Kansas City
Board of Police Commissioners, it held that FECA does not preempt a statute
prohibiting Missouri police officers from donating to federal campaigns even though
the state prohibition fell within a literal reading of the preemption clause. Reeder,
733 F.2d 543, 545 (8th Cir. 1984). The Reeder court was explicit: “some state laws
that could be characterized as coming within the preemption provision, if read
literally and broadly, remain valid.” Id.
A later case confirmed that looking beyond the plain language is appropriate
when “the state law in question [is] close to the boundaries of the domain preempted

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by FECA, and whether the law was preempted would depend on whether that section
was read broadly or narrowly.” Weber, 995 F.2d at 876. Here, WinRed proposes a
broad reading that this court has already rejected. The narrower—and better—
reading sticks to the FEC’s categorical delineation. See 11 C.F.R. § 108.7.
Replacing Reeder and Weber’s sharp analysis with WinRed’s blunt
interpretation makes no sense. Striking down all state laws “with respect to” federal
elections would raise constitutional concerns. See, e.g., U.S. Const. art. I, § 4, cl. 1
(requiring state legislatures determine the “Times, Places and Manner” of federal
elections); U.S. Term Limits v. Thornton, 514 U.S. 779, 832 (1995) (“The Framers
intended the Elections Clause to grant States authority to create procedural
regulations.”), citing 2 Records of the Federal Convention of 1787, 240 (M.
Farrand ed. 1911) (statement of James Madison) and The Federalist No. 60
(Alexander Hamilton); Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000)
(“States have a major role to play in structuring and monitoring the election process,
including primaries.”). Nor is WinRed’s reading mandatory. A statute’s meaning,
the Supreme Court shows, can be narrower than its broadest literal reading. See,
e.g., Am. Needle, Inc. v. NFL, 560 U.S. 183, 189 (2010) (“[E]ven though, read
literally, [the Sherman Act] would [prohibit] the entire body of private contract, that
is not what the statute means.”).
FECA does not expressly preempt General Ellison’s investigation.
B.
That FECA does not expressly preempt General Ellison’s investigation
“supports an inference” that implied preemption does not apply. Freightliner, 514
U.S. at 289. Nonetheless, this court must assess WinRed’s implied preemption
arguments. Id.
The first type of implied preemption, conflict preemption, does not require
enjoining General Ellison’s investigation. Conflict preemption voids state laws

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when (1) “compliance with both federal and state regulations is a physical
impossibility,” or when (2) “the challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”
Arizona v. United States, 567 U.S. 387, 399 (2012) (quotation omitted).
Complying with both FECA and Minnesota’s consumer-protection law is not
a physical impossibility. FECA does not require WinRed to mislead or deceive
consumers. See Minn. Stat. § 325F.69.
Nor does Minnesota law stand as an obstacle to FECA’s purpose. According
to the Supreme Court, “[t]he primary purpose of FECA was to limit quid pro quo
corruption and its appearance.” McCutcheon v. FEC, 572 U.S. 185, 197 (2014).
Accord Buckley v. Valeo, 424 U.S. 1, 26 (1976). WinRed has not shown how
Minnesota’s consumer-protection law facilitates quid pro quo corruption and its
appearance.
WinRed instead argues that FECA’s purpose is “[t]o ensure that federal
elections are administered uniformly across the Nation.” WinRed is correct in a
limited sense. FECA seeks national uniformity in the areas where it preempts state
law. That is why legislators and regulators discussing FECA’s preemption clause—
WinRed’s best authority—often emphasized national uniformity. See H.R. Doc.
No. 95-44, 95th Cong., 1st Sess. 51 (1977); FEC Advisory Op. 2006-24 at 10. The
preemption clause’s purpose—preempting a subset of state laws—does not imply a
grand statutory design to enforce uniformity writ large. See Freightliner, 514 U.S.
at 288 (“[A]n express definition of the pre-emptive reach of a statute implies . . . that
Congress did not intend to pre-empt other matters.”).
Most importantly, WinRed’s national-uniformity obstacle-preemption claim
starts with the premise that Minnesota law mandates specific disclaimers. That
premise, as discussed above, is wrong. Conflict preemption does not prevent
General Ellison from investigating under Minnesota’s consumer-protection law.

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C.
“Field preemption occurs when federal law occupies a ‘field’ of regulation so
comprehensively that it has left no room for supplementary state legislation.”
Murphy v. NCAA, 138 S.Ct. 1461, 1480 (2018) (quotation omitted). Federal statutes
that “provide a full set of standards” and “obligations” can be understood to “also
confer a federal right to be free from any other . . . requirements.” Id. at 1481, citing
Arizona, 567 U.S. at 401.
FECA does not “occupy the field” of donor-protection laws. The FEC says
that, when it comes to recurring donations, FECA has not even entered the field. See
D.S.C.C., 454 U.S. at 37 (“[D]eference should presumptively be afforded [to the
FEC].”). In a 2018 matter under review, the FEC opined that a complaint alleging
four unauthorized withdrawals of recurring donations “fail[ed] to identify a violation
of the Federal Election Campaign Act.” Trump Make America Great Again
Committee, Matter Under Review (MUR) 7255 (FEC Jan 25, 2018). See also Ted
Cruz for Senate, MUR 7201 (FEC Jan. 26, 2018) (no FECA violation for charging
recurring donations despite promising not to). The FEC confirmed FECA’s
inapplicability to recurring-donation boxes in a 2021 set of legislative
recommendations. FEC, Legislative Recommendations of the Federal Election
Commission 2021, Agenda Document No. 21-24-A1 (May 6, 2021) at 12–13 (last
visited Dec. 12, 2022), available at https://www.fec.gov/resources/cms-
content/documents/legrec2021.pdf. There, it requested Congress amend FECA to,
for the first time, create recurring-contribution consent and disclaimer requirements.
Id.
FECA’s silence does not demonstrate a congressional intent to forbid any and
all federal-election-related consumer protections. See Freightliner, 514 U.S. 288
(an express preemption clause implies no preemption in other areas).

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Other courts confirm that FECA does not crowd out anti-deception state laws.
The D.C. Circuit drew a clear line between identity-disclaimer and honesty-
promoting requirements in Galliano v. USPS. 836 F.2d at 1370. The court
contrasted identity-disclaimers, which FECA alone may regulate, with “allegedly
false statement[s],” which it described as “representations not specifically regulated
by FECA” and thus amenable to regulations by other entities. Id. Then-judge Ruth
Bader Ginsburg, writing for the court, explained that federally exclusive identity-
disclosure requirements “were meant to provide a safe haven to candidates and
political organizations with respect to those organizations’ names and sponsorship.”
Id.
No court has found that Congress also intended FECA’s silence on deceptive
practices to constitute a similar “safe haven” to PACs with respect to “fraud,
misrepresentation, [and] deceptive practices.” Minn. Stat. § 325F.69. See also
Galliano, 826 F.2d at 1371 (“No provisions of FECA set standards for [false claims
about fundraising prowess] and there is no reason to believe that the silence of that
legislation was meant to exempt uncovered statements from all regulation.”); FEC
Advisory Op. 1981-27 (July 2, 1981) (describing an anti-littering law as “outside
[FECA’s] purview”).
WinRed argues that FECA’s imposition of identity-disclaimer requirements
implies “a federal right to be free from any other . . . requirements.” Murphy v.
NCAA, 138 S. Ct. 1461, 1481 (2018) (quotation omitted). But again, this is not a
case solely about disclaimer requirements. And because it is not, Minnesota’s
deceptive-practices prohibition applies to WinRed and General Ellison can
investigate whether WinRed violated it.
V.
WinRed accuses General Ellison of a political “fishing expedition,” which he
denies. Accusations aside, WinRed may not be without recourse. Minnesota courts
can limit overbroad CIDs. See Roberts v. Whitaker, 178 N.W.2d 869, 877 (Minn.

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1970) (“[A] government agency is not licensed to engage in a general fishing
expedition into the affairs of private parties on the mere hope that some useful
information will be disclosed.”). Even if an investigation has political valence, this
court will not undermine Minnesota’s sovereign prerogatives. Cf. Major League
Baseball, 331 F.3d at 1181 (noting that state courts can enforce state-law limits on
a subpoena’s scope).
* * * * * * *
WinRed errs from the start by attacking a disclaimer mandate where none
exists. Minnesota’s consumer-protection law prohibits deceptive practices, and
federal law does not preempt Minnesota’s enforcing it against WinRed. Because an
enforceable state law underlies General Ellison’s investigation, the investigation
may proceed.
The judgment is affirmed.
SHEPHERD, Circuit Judge, writing separately.
I write separately because I believe that this case is not ripe for judicial review,
and thus, we lack jurisdiction. Further, I write to express my concern with the
breadth of the Minnesota Attorney General’s (AG) Civil Investigative Demand
(CID).
WinRed does not and could not argue that federal law preempts every state
law that would otherwise apply to it, just because it is a federally registered conduit
PAC. Instead, the crux of WinRed’s preemption claim is that “[t]he disclaimers it
must include while serving as a conduit for federal political contributions . . . fall
directly within the heartland of FECA-regulated and FEC-enforced activity.”
Because, according to WinRed, Minnesota cannot mandate disclaimers beyond
those required by federal law, the AG’s investigation is preempted.

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However, this argument puts the cart before the horse. Indeed, the Minnesota
laws which the AG cites in the CID as the basis for his investigation—the Minnesota
Consumer Fraud Act and Minnesota Deceptive Trade Practices Act—say nothing
about mandated disclaimers. See Minn. Stat. §§ 325F.69, 325D.44. And for the
reasons set forth in Section III of the Court’s opinion, Minnesota law does not
mandate disclaimers. As discussed in the AG’s brief, then, the only way Minnesota
may require additional disclaimers is through a potential remedy at the end of an
enforcement action which has not yet taken shape. Even then, additional disclaimers
are only one potential remedy the AG may pursue. The AG, instead, may seek
restitution for consumers, a prohibition of the use of pre-checked recurring donations
boxes, or nothing at all.
“A claim is not ripe for adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United
States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 580-81 (1985)). At this stage, WinRed’s preemption claim is not
yet ripe for review because it is based on the speculative chance that the AG may
eventually require WinRed to provide additional disclaimers. Cf. Arizona v. United
States, 567 U.S. 387, 414-15 (2012) (rejecting preemption challenge as premature
because “it would be inappropriate to assume [that the provision subject to state
enforcement] will be construed [by state officials] in a way that creates a conflict
with federal law”); Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local,
468 U.S. 491, 512 (1984) (refusing to reach preemption question because state
agency never actually imposed the sanction that would have given rise to preemption
issue). I would thus dismiss this appeal and defer judicial review until the AG’s
investigation and enforcement processes have played out and it is clear whether there
is a concrete controversy over disclaimers.
Although the AG’s investigation must be allowed to move forward, I am
concerned with the breadth of the CID. It requests an extraordinary amount of
sensitive information from a political organization, some of which has a tenuous
relationship, at best, with the AG’s investigation. For example, the CID seeks “[a]ll

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[d]ocuments showing the conversion rate of website donors who made recurring
donations in the absence of a pre-checked recurring donation box,” and the identities
of “all political committees, parties, and candidates (and any other clients) for whom
WinRed has used pre-checked recurring or additional donation boxes.” R. Doc. 24-
1, at 39 (emphasis added). Because political speech and association is at the very
core of the First Amendment’s protections, see Buckley v. Valeo, 424 U.S. 1, 14-15
(1976), the AG should exercise caution moving forward, as WinRed has important
rights at stake. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)
(“Inviolability of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly where a group
espouses dissident beliefs.”); Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373,
2388 (2021) (“[D]isclosure requirements can chill association ‘[e]ven if there [is] no
disclosure to the general public.’”) (second and third alterations in original) (quoting
Shelton v. Tucker, 364 U.S. 479, 486 (1960)).
______________________________

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