An opinion in WinRed Inc. v. Ellison written by Judge Benton, joined by Chief Judge Smith (with some excerpts, below, lightly edited). (Judge Shepherd, “writing separately,” argues the case is not ripe for review and the court lacks jurisdiction.)

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; Evie Fordham, Trump Campaign and Allies Refund $122M to WinRed Donors: Report, FoxNews, Apr. 4, 2021. According to one report, donations would be repeatedly withdrawn from consumers’ accounts unless they “wade[d] through a fine-print disclaimer and manually uncheck[ed] a box to opt out,” a process complicated by “lines of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. 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. . . .

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). 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.”

The CID made ten document requests, many focused on pre-checked recurring-donation boxes, the webpages that contained them, and any disclosures or disclaimers from the webpages. WinRed sought to preliminary enjoin enforcement of the subpoenas and CIDs.

. . .

WinRed asks this court to declare General Ellison’s investigation preempted and enjoin it.

. . .

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 investigation. 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. 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.” . . .

. . .

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?

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.

. . .

. . .FECA preempts General Ellison’s investigation only if it prohibits Minnesota from enforcing its deceptive-practice ban against WinRed’s online solicitations.

. . .

FECA does not expressly preempt General Ellison’s investigation. . . . It categorizes state law into three preempted areas and six non-preempted areas . . . .

. . . 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.”

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. 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].”

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. . . .

. . .

That FECA does not expressly preempt General Ellison’s investigation “supports an inference” that implied preemption does not apply. Nonetheless, this court must assess WinRed’s implied preemption arguments. . . .

. . .

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. . . .

. . .

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. 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.

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.

And from Judge Shepherd’s “writing separately” opinion:

. . . 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.

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.

. . .

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 [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.” 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)).