Minnesota Chamber of Commerce v. Choi

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Minnesota Chamber of Commerce, a       File No. 23-cv-2015 (ECT/JFD)      
Minnesota nonprofit corporation,                                          

          Plaintiff,                                                 

v.                                       OPINION AND ORDER                

John Choi, in his official capacity as County                             
Attorney for Ramsey County, Minnesota;                                    
George Soule, in his official capacity as                                 
Chair of the Minnesota Campaign Finance                                   
and Public Disclosure Board; David Asp, in                                
his official capacity as Vice Chair of the                                
Minnesota Campaign Finance and Public                                     
Disclosure Board; Carol Flynn, in her                                     
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; Margaret Leppik, in her                                 
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; Stephen Swanson, in his                                 
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; and Faris Rashid, in his                                
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board,                                                         
Defendants.                                                          

________________________________________________________________________  
Thomas H. Boyd, Kyle R. Kroll, Cianna Halloran, Jordan Mogensen, and Tammera R. 
Diehm,  Winthrop  &  Weinstine,  P.A.,  Minneapolis,  MN,  for  Plaintiff  the  Minnesota 
Chamber of Commerce.                                                      
Kristine K. Nogosek and Kevin Scott Plaisance, Ramsey County Attorney’s Office, St. 
Paul, MN, for Defendant John Choi.                                        
Janine  Wetzel  Kimble,  Matthew  Mason,  Nathan  J.  Hartshorn,  Minnesota  Office  of 
Attorney General, St. Paul, MN, for Defendants George Soule, David Asp, Carol Flynn, 
Margaret  Leppik,  Stephen  Swanson,  and  Faris  Rashid,  in  their  official  capacities  as 
Members of the Minnesota Campaign Finance and Public Disclosure Board.    
________________________________________________________________________  
In this case, Plaintiff Minnesota Chamber of Commerce, a nonprofit membership 
organization representing more than 6,000 Minnesota businesses, asserts First Amendment 
and Supremacy Clause challenges to provisions of the Minnesota Fair Campaign Practices 
Act.  The challenged provisions—which are scheduled take effect January 1, 2024—would 
forbid some (but not all) business organizations with foreign ownership from exercising 
their First Amendment free-speech rights in connection with elections for state and local 
public office and ballot questions in Minnesota.  These free-speech prohibitions have teeth 
in the form of criminal and civil consequences.  Important here, the extent of foreign 
ownership necessary to trigger the statute’s prohibitions is not great: a foreign ownership 
interest of as little as one percent may qualify.  Defendants are the Ramsey County Attorney 

and members of the Minnesota Campaign Finance and Public Disclosure Board.  The 
Ramsey County Attorney (along with all County Attorneys in Minnesota) and the Board 
are among the state officials empowered to enforce the challenged statute. 
The Chamber moved for a preliminary injunction, seeking to enjoin Defendants 
from enforcing subdivisions 4a and b of the challenged statute, Minn. Stat. § 211B.15.  
ECF No. 58.  The motion will be granted because the Chamber is likely to prevail on the 

merits of its First Amendment challenge.  Preventing foreign influence on Minnesota 
elections  is  a  compelling  state  interest  in  the  abstract.    The  problem  is  that  settled 
constitutional principles require any state statute that burdens—or, as here, outlaws—
political  speech  to  be  narrowly  tailored  to  achieving  that  compelling  interest.    The 
challenged provisions are not narrowly tailored in the sense our Constitution requires.  
                           I                                         

Governor Tim Walz signed H.F. No. 3 into law on May 5, 2023.  2023 Minnesota 
Laws Chapter 34, art. 3, sec. 3–6.  H.F. No. 3 amended Minn. Stat. § 211B.15 to prohibit 
“foreign-influenced corporations” from making political contributions and independent 
expenditures in Minnesota’s elections.  As noted above, the amended statute becomes 
effective January 1, 2024.  2023 Minnesota Laws Chapter 34, art. 3, sec. 3–6. 

For the statute’s purposes, a “corporation” is defined as:           
     (1) a corporation organized for profit that does business in this 
     state;                                                          

     (2) a nonprofit corporation that carries out activities in this 
     state; or                                                       

     (3) a limited liability company formed under chapter 322C, or   
     under similar laws of another state, that does business in this 
     state.                                                          

Minn. Stat. § 211B.15 subdiv. 1(c)(1)–(3).  Although the “corporation” definition in 
subdivision 1(c) includes nonprofit corporations, the statute later makes clear that the 
challenged provisions are not intended to regulate the political activities of nonprofit 
corporations.  Minn. Stat. § 211B.15 subdiv. 1(d).                        
The statute defines a foreign-influenced corporation as a for-profit corporation or 
limited liability company for which at least one of the following conditions is met: 
     (1) a single foreign investor holds, owns, controls, or otherwise 
     has direct or indirect beneficial ownership of one percent or   
     more  of  the  total  equity,  outstanding  voting  shares,     
     membership units, or other applicable ownership interests of    
     the corporation;                                                

     (2) two or more foreign investors in aggregate hold, own,       
     control,  or  otherwise  have  direct  or  indirect  beneficial 
     ownership  of  five  percent  or  more  of  the  total  equity, 
     outstanding  voting  shares,  membership  units,  or  other     
     applicable ownership interests of the corporation; or           

     (3) a foreign investor participates directly or indirectly in the 
     corporation’s  decision-making  process  with  respect  to  the 
     corporation’s political activities in the United States.        

Minn. Stat. § 211B.15 subdiv. 1(d)(1)–(3).  A foreign investor is defined, in turn, as a 
person or entity that:                                                    
     (1) holds, owns, controls, or otherwise has direct or indirect  
     beneficial  ownership  of  equity,  outstanding  voting  shares, 
     membership units, or otherwise applicable ownership interests   
     of a corporation; and                                           

     (2) is any of the following:                                    

     (i) a government of a foreign country;                          

     (ii) a political party organized in a foreign country;          

     (iii) a partnership, association, corporation, organization, or 
     other combination of persons organized under the laws of or     
     having its principal place of business in a foreign country;    

     (iv) an individual outside of the United States who is not a    
     citizen or national of the United States and who is not lawfully 
     admitted for permanent residence in the United States; or       

     (v) a corporation in which a foreign investor as defined in items 
     (i) to (iv) holds, owns, controls, or otherwise has directly or 
     indirectly acquired beneficial ownership of equity or voting    
     shares in an amount that is equal to or greater than 50 percent 
     of the total equity or outstanding voting shares.               
Minn. Stat. § 211B.15 subdiv. 1(e).                                       
The challenged statute provides that a foreign-influenced corporation must not: 
     (1)  make  an  expenditure,  or  offer  or  agree  to  make  an 
     expenditure,  to  promote  or  defeat  the  candidacy  of  an   
     individual for nomination, election, or appointment to a public 
     office;                                                         

     (2) make contributions or expenditures to promote or defeat a   
     ballot question, or to qualify a question for placement on the  
     ballot;                                                         

     (3) make a contribution to a candidate for nomination, election, 
     or appointment to a public office or to a candidate’s principal 
     campaign committee; or                                          

     (4) make a contribution to a political committee, political fund, 
     or political party unit.                                        

Minn.  Stat.  §  211B.15  subdiv.  4a(a)(1)–(4).    To  avoid  circumvention,  “[a] 
foreign-influenced corporation must not make a contribution or donation to any other 
person or entity with the express or implied condition that the contribution or donation or 
any part of it be used for any of the purposes prohibited by this subdivision.”  Minn. Stat. 
§ 211B.15 subdiv. 4a(b).                                                  
To  enforce  these  prohibitions,  §  211B.15  includes  a  compliance-certification 
requirement.  A corporation or limited liability company “that makes a contribution or 
expenditure authorized by subdivision 3 or 4 must submit a certification to the Campaign 
Finance and Public Disclosure Board that it was not a foreign-influenced corporation as of 
the date the contribution or expenditure was made.”  Minn. Stat. § 211B.15 subdiv. 4b.  
“The certification must be submitted within seven business days after the contribution or 
expenditure is made and must be signed by the corporation’s chief executive officer after 
reasonable inquiry, under penalty of perjury.”  Id.                       
The  challenged  provisions  are  backed  by  civil  and  criminal  penalties.    A 

representative of a corporation or limited liability company “acting on behalf of the 
corporation who violates this section is subject to a civil penalty of up to ten times the 
amount of the violation, but in no case more than $10,000.”  Minn. Stat. § 211B.15 subdiv. 
6(a).  A knowing violation of § 211B.15 is a crime.  Id. subdiv. 6(b).  An individual who 
knowingly violates § 211B.15 on behalf of a corporation may be fined up to $20,000 or 

imprisoned for up to five years.  Id.  A corporation or limited liability company that violates 
§ 211B.15 is subject to the same civil penalties as an individual.  Id. subdiv. 7(a).  A 
corporation or limited liability company’s knowing violation is also a crime.  Id. subdiv. 
7(b).  “A corporation convicted of knowingly violating this section is subject to a fine not 
greater than $40,000.  A convicted domestic corporation may be dissolved as well as fined.  

If a foreign or nonresident corporation is convicted, in addition to being fined, its right to 
do business in this state may be declared forfeited.”  Id.                
The Chamber filed the operative eight-count Complaint on June 30, 2023.  Compl. 
[ECF No. 1].  On behalf of itself and its members, the Chamber seeks a declaration 
“Minnesota Statutes sections 211B.15, subds. 1 (a), (b), (c), (d), (e), 4a, and 4b” are 

unconstitutional because they violate the First Amendment.  Compl. ¶¶ 85–96, 142–55.  
The Chamber also seeks a declaration that those same subdivisions are preempted via the 
Supremacy Clause by the Federal Election Campaign Act (“FECA”).  Id. ¶¶ 116–26, 177–
87.  The Chamber seeks injunctive relief on behalf of itself and its members.  Id. 97–115, 
127–41, 156–76, 188–202.  The Chamber filed a motion seeking a preliminary injunction 
on October 24, 2023.  ECF No. 58.                                         
                           II                                        

Before reaching the merits, it is helpful to confirm the Chamber’s Article III 
standing.  The Chamber must allege facts plausibly showing it possesses Article III 
standing.  See Jones v. Jegley, 

, 1103–05 (8th Cir. 2020); see also Rodgers 
v. Bryant, 

, 454–55 (8th Cir. 2019).                          
The Chamber is an organization that may seek judicial relief from an injury to its 

members as a representative of those members.  Students for Fair Admissions, Inc. v. 
President & Fellows of Harvard Coll., 

, 199 (2023).  To invoke organizational 
standing, the Chamber must demonstrate that “(a) its members would otherwise have 
standing to sue in their own right; (b) the interests it seeks to protect are germane to the 
organization’s purpose; and (c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.”  Id. (quoting Hunt v. Washington 
State Apple Advert. Comm’n, 

 (1977)).  The Chamber “need not establish 
that all of its members would have standing to sue individually so long as it can show that 
‘any one of them’ would have standing.”  Iowa League of Cities v. E.P.A., 

 (8th Cir. 2013) (quoting Warth v. Seldin, 

 (1975)).  

Here, the Chamber has done more than plausibly show its standing.  The Chamber 
submitted declarations from CEOs of member-corporations who testify their corporations 
will be prohibited from making election expenditures when § 211B.15 subdivision 4a 
becomes effective.  See ECF Nos. 62–64.  This declaration testimony describes an injury, 
caused by the statute, that will be redressed by enjoining enforcement of the statute.  The 
First Amendment interests the Chamber seeks to protect are germane to the Chamber’s 
stated mission of “lead[ing] the statewide business community to advance pro-business, 

responsible public policy.”  ECF No. 61 ¶¶ 2–7.  And the Chamber seeks declaratory and 
injunctive relief that does not require “individualized proof and . . . [is] thus properly 
resolved in a group context.”  Hunt, 

.1                    
                          III                                        
A preliminary injunction is an “extraordinary remedy.”  Winter v. Nat. Res. Def. 

Council, Inc., 

 (2008) (citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  The Eighth Circuit’s familiar Dataphase decision describes the 
list of considerations applied to decide whether to grant preliminary injunctive relief: “(1) 
the likelihood of the movant’s success on the merits; (2) the threat of irreparable harm to 
the movant in the absence of relief; (3) the balance between that harm and the harm that 

the relief would cause to the other litigants; and (4) the public interest.”  Lexis-Nexis v. 
Beer, 

 (D. Minn. 1999) (citing Dataphase Sys., Inc. v. C L Sys., 
Inc., 

, 112–14 (8th Cir. 1981) (en banc)).  The core question is whether the 
equities “so favor[] the movant that justice requires the court to intervene to preserve the 
status quo until the merits are determined.”  Dataphase, 

 (footnote omitted).  

“The burden of establishing the four factors lies with the party seeking injunctive relief.”  


1    At the hearing on the Chamber’s motion, the Board did not seriously dispute that 
the Chamber had adequately demonstrated organizational standing at this stage of the case. 
CPI Card Grp., Inc. v. Dwyer, 

 (D. Minn. 2018) (citing Watkins, 

).                                                         
                           A                                         

“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (citations 
and internal quotation marks omitted).  “[A] party seeking a preliminary injunction of the 
implementation of a state statute must demonstrate more than just a ‘fair chance’ that it 
will succeed on the merits.”  Planned Parenthood Minn., N.D., S.D. v. Rounds, 

, 731–32 (8th Cir. 2008).  Instead, the movant must “make[] a threshold showing that 
it is likely to prevail on the merits.”  

.  “[T]he absence of a likelihood of success 
on the merits strongly suggests that preliminary injunctive relief should be denied.”  CDI 
Energy Servs. v. W. River Pumps, Inc., 

 (8th Cir. 2009).  Conversely, 
when a court determines a plaintiff is “likely to win on the merits of their First Amendment 

claim, a preliminary injunction is proper.”  Minn. Citizens Concerned for Life, Inc. v. 
Swanson, 

 (8th Cir. 2012).                               
                           1                                         
The Chamber’s first argument is that the challenged provisions of Minn. Stat. § 
211B.15 violate the First Amendment.  ECF No. 60 at 21.  The First Amendment provides 

that “Congress shall make no law . . . abridging the freedom of speech.”  U.S. Const. 
amend. I. “[T]he First Amendment ‘has its fullest and most urgent application’ to speech 
uttered during a campaign for political office.”  Eu v. San Francisco Cnty. Democratic 
Cent. Comm., 

 (1989) (quoting Monitor Patriot Co. v. Roy, 

 (1971)).  The Supreme Court has “rejected the argument that political speech of 
corporations or other associations should be treated differently under the First Amendment 
simply because such associations are not ‘natural persons.’”  Citizens United v. Fed. 

Election Comm’n, 

 (2010) (quoting First Nat. Bank of Bos. v. Bellotti, 

  (1978)).    “Corporations  and  other  associations,  like  individuals, 
contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that 
the First Amendment seeks to foster.”  Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 

 (1986) (quoting Bellotti, 

).  Although “foreign organizations 

operating abroad have no First Amendment rights,” Agency for Int’l Dev. v. All. for Open 
Soc’y Int’l, Inc., 591 U.S. ---, 

 (2020), domestic corporations are 
protected under the First Amendment.  Citizens United, 

 (collecting cases).  
There is no support for the proposition that corporations lose their First Amendment 
protections merely because a foreign national purchases some share or interest, no matter 

how small.  Cf. 

  After all, “American corporations . . . [are] members of the American 
political community.”  Bluman v. Fed. Election Comm’n, 

 (D.D.C. 
2011), aff’d, 

 (2012).  And no case holds that a corporation ceases to be 
“American” by virtue of any quantum of foreign ownership.                 
Section 211B.15 subdivision 4a prohibits foreign-influenced corporations from 

making political contributions and independent expenditures.  Minnesota enforces this ban 
with civil and criminal penalties.  See Minn. Stat. § 211B.15 subdiv. 6–7.  “Independent 
expenditures are indisputably political speech,” Minn. Citizens Concerned for Life, Inc. v. 
Swanson, 

 (8th Cir. 2012), and “[l]aws that burden political speech are 
‘subject  to  strict  scrutiny,’” Citizens  United,  

  (quoting Fed.  Election 
Comm’n v. Wis. Right To Life, Inc. (“WRTL”), 

 (2007)).  Under strict 
scrutiny, the “Government must prove that [§ 211B.15] furthers a compelling interest and 

is narrowly tailored to achieve that interest.”  WRTL, 

.   
In general, courts apply a different standard of review when political contributions 
are regulated.  “[R]estrictions on political contributions have been treated as merely 
‘marginal’ speech restrictions subject to relatively complaisant review under the First 
Amendment, because contributions lie closer to the edges than to the core of political 

expression.”  Fed. Election Comm’n v. Beaumont, 

 (2003).  “While 
contributions may result in political expression if spent by a candidate or an association 
. . ., the transformation of contributions into political debate involves speech by someone 
other than the contributor.”  Buckley v. Valeo, 

 (1976).  Citizens United 
“cast[] doubt on Beaumont, leaving its precedential value on shaky ground.”  Swanson, 

 n.12.  However, the Supreme Court has (so far) declined to reconsider the 
distinction between contributions and expenditures.  See McCutcheon v. Fed. Election 
Comm’n,  

  (2014)  (“[W]e  see  no  need  in  this  case  to 
revisit Buckley’s distinction between contributions and expenditures and the corollary 
distinction in the applicable standards of review.”); Fed. Election Comm’n v. Cruz, 

, 305 (2022).  Because the Supreme Court has not overruled its earlier precedent, 
exacting scrutiny remains the standard of review when political contributions are regulated.  
See Agostini v. Felton, 

 (1997).   Under exacting scrutiny, “the challenged 
law must advance a sufficiently important state interest and employ means closely drawn 
to avoid unnecessary abridgment of First Amendment freedoms.”  Free & Fair Election 
Fund v. Mo. Ethics Comm’n, 

 (8th Cir. 2018).             
Although the Board acknowledges the distinction, it “assumes for purposes of this 

motion that strict scrutiny applies.”  ECF No. 88 at 23.  The Chamber and amici apply strict 
scrutiny without acknowledging the distinction.  The better answer, for purposes of this 
order, is to follow the heightened standard of review the Board assumes applies.  But it 
makes no difference in the end.  Both tests “assess the fit between the stated governmental 
objective and the means selected to achieve that objective.”  McCutcheon, 

.  

“Or to put it another way, if a law that restricts political speech does not ‘avoid unnecessary 
abridgment’ of First Amendment rights it cannot survive ‘rigorous’ review.”  

 (quoting 
Buckley,  

).    For  reasons  to  be  discussed,  the  political  contribution 
prohibitions in § 211B.15 would fail even under the “closely drawn” test for the same 
reasons the challenged provisions are not narrowly tailored.              

                           a                                         
The first prong of strict scrutiny is Minnesota’s compelling interest.  The Board 
contends “Minnesota has a compelling interest in protecting democratic self-governance 
in Minnesota from foreign influence.”  ECF No. 88 at 23.  For support, the Board relies on 
Bluman v. Federal Election Commission, 

 (D.D.C. 2011), aff’d, 

 (2012).  In Bluman, foreign citizens, who resided and worked in the United 
States on temporary work visas, challenged the constitutionality of 2 U.S.C. § 441e(a), a 
provision of the Bipartisan Campaign Reform Act.  Id. at 282–83.  Section 441e(a) 
prohibits foreign citizens from donating money to candidates in federal and state elections.  
Id.  The court rejected the First Amendment challenge, reasoning “[t]he 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 the U.S. political process.”  Id. at 288.  Bluman’s 
rationale expressly extends to foreign corporations, although the court declined “to analyze 
the circumstances under which a corporation may be considered a foreign corporation for 
purposes of First Amendment analysis.”  Id. at 292 n.4.                   
The Supreme Court’s summary affirmance renders Bluman binding precedent, 

Hicks  v.  Miranda,  

  (1975),  although  “the precedential effect  of 
a summary affirmance can  extend  no  farther  than  the  precise  issues  presented  and 
necessarily decided by those actions,” Ill. State Bd. of Elections v. Socialist Workers Party, 

 (1979) (quotations omitted).  From Bluman, it follows that Minnesota 
has  a  compelling  interest  to  limit  the  participation  of  foreign  citizens  and  foreign 

corporations in activities of American democratic self-government, including spending 
money to expressly advocate for or against a political candidate.  Bluman, 800 F. Supp. 2d 
at 289–90 (“Spending money to contribute to a candidate or party or to expressly advocate 
for  or  against  the election of  a  political  candidate  is  participating  in  the  process  of 
democratic self-government.”).                                            

The Chamber seems to challenge the presence of a compelling interest when it 
argues that the “professed intent to limit ‘foreign influence’ in domestic elections is a 
pretext” to limit corporate spending in elections, ECF No. 60 at 26, but this contention is 
not persuasive.  To support this point, the Chamber relies on statements from the legislative 
record.  See e.g., ECF No. 60 at 9 (“[T]he stated goal of this bill is to get political spending 
out of elections[.]”).  As the Board points out, the legislative record includes many 
references to Minnesota’s stated goal of limiting foreign influence.  ECF No. 88 at 14–16.  

Regardless, the Chamber’s subjective-intent analysis would seem to flip the strict-scrutiny 
test on its head.  As the Supreme Court explained in the equal protection context, “the 
purpose of strict scrutiny is to ‘smoke out’ illegitimate [purposes].”  City of Richmond v. 
J.A. Croson Co., 

 (1989).  As in Citizens United, the better approach is 
to rigorously test Minnesota’s stated compelling interest.                

The scope of the compelling interest also deserves clarification in view of arguments 
advanced by the Board.  The Board contends “Bluman could be read to permit restrictions 
on election activities of corporations with any equity held by foreign investors.”  ECF No. 
88 at 28.  And it further argues that § 211B.15 “simply makes sure entities contributing to 
our political process are, indeed, associations of U.S. citizens.”  ECF No. 88 at 25.  The 

Board implies, in other words, that Minnesota has a compelling interest to prohibit all 
political expenditures by a corporation with even a single foreign shareholder to prevent 
foreign influence in the process of democratic self-government.           
Not so.  For several reasons.  Although Citizens United declined to “reach the 
question  whether  the  Government  has  a  compelling  interest  in  preventing  foreign 

individuals or associations from influencing our Nation’s political process,” 

, Justice Kennedy observed § 441b would be overbroad (even if the interest was 
compelling) because § 441b was “not limited [to] corporations or associations that were 
created in foreign countries or funded predominately by foreign shareholders,” id.  In other 
words, Justice Kennedy suggested there could be a compelling foreign-influence interest 
to ban the independent expenditures of corporations “funded predominately by foreign 
shareholders.”  One percent is a far cry from predominately.  Bluman serves the Board no 

better.  Because Bluman concerned individuals, the court had “no occasion to analyze the 
circumstances under which a corporation may be considered a foreign corporation for 
purposes of First Amendment analysis.”  Bluman, 

 n.4.   
The better answer is that preventing the exercise of First Amendment-protected 
political speech by a corporation with foreign shareholders, without more, does not alone 

represent a compelling interest.  As Bluman explained, “American corporations . . . [are] 
members of the American political community.”  Bluman, 

.  And 
although Bluman found § 441e(a)’s indirect prohibition constitutional, it does not follow 
that a foreign shareholder indirectly participates in our national political process simply by 
possessing shares.  Instead, Minnesota’s compelling interest to prevent foreign nationals 

from  participating  in  our  national  political  process  extends  to  preventing  foreign 
nationals—including foreign shareholders of domestic corporations—from controlling or 
exercising influence over a corporation’s election-expenditures.          
                           b                                         
The second prong of the strict scrutiny analysis is narrow tailoring.  “A narrowly 

tailored [statute] is one that actually advances the state’s interest (is necessary), does not 
sweep too broadly (is not overinclusive), does not leave significant influences bearing on 
the  interest  unregulated  (is  not  underinclusive),  and  could  be  replaced  by  no  other 
regulation that could advance the interest as well with less infringement of speech (is the 
least-restrictive alternative).”  Republican Party of Minn. v. White, 

 (8th 
Cir. 2005) (collecting cases).  “[T]he seriousness with which the regulation of core political 
speech  is  viewed  under  the  First  Amendment  requires  such  regulation  to  be 

as precisely tailored as possible.”  

  The challenged provisions of § 211B.15 are not 
narrowly tailored to achieve Minnesota’s compelling foreign-influence interest. 
(i)  The  first  step  is  considering  how  the  statute  advances  Minnesota’s  stated 
compelling interest—preventing foreign influence in its elections.  White, 

.  
To be actually necessary and advance the stated interest, “[t]here must be a direct causal 

link between the restriction imposed and the injury to be prevented.”  United States v. 
Alvarez, 

 (2012).  To this end, courts consider evidence of the harm the 
Government seeks to prevent.  McCutcheon, 572 U.S. at 219–21; Eu, 

; 
Cruz, 596 U.S. at 306–08; 281 Care Comm. v. Arneson, 

, 790–91 (8th Cir. 
2014).                                                                    

The Board and amicus Clean Elections identify several potential ways foreign 
shareholders  could  exercise  control  or  influence  over  a  corporation’s  political 
expenditures.  ECF 88 at 29 n.18 (“investors with [1%] ownership can easily get executive-
suite management on the phone.”), 30 (“The ability to present a shareholder proposal can 
create substantial leverage.”); ECF No. 92 at 10 (“Shareholders can also exert influence 

through actual or threatened proxy fights to change a company’s management.”).  And the 
Board contends that a foreign national with one percent ownership could exert such 
influence over a corporation, pointing to the SEC’s longstanding rule that shareholders 
with a one percent stake in a corporation may present a shareholder proposal.  ECF No. 88 
at 28.  Fair enough.  But explaining how foreign minority shareholders could exercise 
influence over corporations is not enough to justify § 211B.15’s ban on corporations’ 
political speech.  The Board must do more than “simply posit the existence of the disease 

sought to be cured.”  Col. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 

 (1996) (quoting Turner Broad. Sys., Inc. v. F.C.C., 

 
(1994)).  The Board fails to offer evidence that minority foreign shareholders have even 
once exercised influence or control over a corporation’s election expenditures in Minnesota 
or elsewhere.                                                             

The Board points to Uber and Airbnb spending millions of dollars on municipal 
ballot initiatives despite the presence of substantial foreign shareholders—Saudi Arabia 
held a stake in Uber, and Moscow-based DST Global held a stake in Airbnb.  ECF No. 88 
at 9; ECF No. 93-1 at 4–5.  But the Board does not identify how, or if, Saudi Arabia or 
DST  Global  exercised  control  or  influence  over  these  corporations’  election-related 

expenditures.  Nor is there any reason to infer, for example, that DST Global exercised 
such influence over Airbnb’s response to the “New York Legislature’s growing interest in 
regulating the industry,” ECF No. 93-1 at 4–5, election expenditures consistent with 
Airbnb’s core business interests.                                         
Next, the Board cites a handful of news articles involving domestic subsidiaries of 

foreign companies.  See ECF No. 88 at 9.  For example, in 2016, a company “controlled 
by two Chinese citizens” gave $3 million to support Jeb Bush’s run for president.  

  
Taking these articles at face value (and assuming, without deciding, that the political 
expenditures constituted foreign influence in a compelling sense), this only demonstrates 
how § 211B.15 slightly advances Minnesota’s foreign-influence interest.  This is because 
§  211B.15’s  one-percent  and  five-percent  thresholds  are  premised  on  the  danger  of 
minority foreign shareholders exercising control or influence.  Evidence that subsidiaries 

“controlled”  by  foreign  shareholders  have  (occasionally)  attempted  to  influence  the 
nation’s  political  process  does  not  justify  Minnesota’s  foreign  minority  shareholder 
concerns.                                                                 
The  Board’s  reliance  on  the  City  of  Seattle’s  findings  of  fact  is  equally 
unpersuasive.    Seattle  found,  for  example,  that  foreign  nationals  were  “unlawfully 

funneling foreign funding into local elections through third parties and shell corporations.”  
ECF No. 88 at 12.  But Minn. Stat. § 211B.15 does nothing to prevent foreign nationals 
from “funneling foreign funding into local elections” through straw donors and shell 
corporations owned by citizens.  And although not a requirement, the absence of any 
factual findings by the Minnesota Legislature is noteworthy.  Nor has the Board identified 

any examples of foreign influence in Minnesota elections.  It suffices to say, Minnesota 
has not demonstrated § 211B.15’s one-percent and five-percent thresholds are sufficiently 
linked to the harm sought to be prevented.  And courts “have never accepted mere 
conjecture as adequate to carry a First Amendment burden.”  Arneson, 

 
(quoting Nixon v. Shrink Mo. Gov’t PAC, 

 (2000)).        

(ii) A statute may fail narrow tailoring for being overinclusive.  See Brown v. Ent. 
Merchs. Ass’n, 

 (2011).  A statute is overinclusive when it “sweep[s] too 
broadly,” infringing further on First Amendment rights than is necessary to advance the 
compelling interest.  Wersal v. Sexton, 

 (8th Cir. 2012); White, 

.                                                              
Section 211B.15 classifies a corporation as “foreign-influenced” when a single 

shareholder holds a one-percent interest, or multiple shareholders collectively hold a five-
percent interest.  As discussed previously, corporations with foreign shareholders retain the 
First Amendment rights identified by Citizens United.  And § 211B.15’s prohibition on 
corporate independent expenditures, backed by criminal penalties, infringes on those 
corporations’ First Amendment rights.  Citizens United, 

.  A domestic 

corporation with a foreign shareholder holding one percent of its shares is banned from 
speaking, even if that foreign national is a passive investor who exercises no influence or 
control over the corporation’s election expenditures.  Because the Board has failed to 
identify evidence that minority foreign shareholders regularly (or ever) exercise influence 
or control over corporations’ political expenditures, the challenged provisions of § 211B.15 

sweep far too broadly.                                                    
Citizens  United  cautions  that  the  loss  of  corporations’  political  speech,  and 
consequently their First Amendment rights, must not to be taken lightly.  See Citizens 
United, 558 U.S. at 354–56.  The Board counters that the statute “affects very few 
companies overall.”  ECF No. 88 at 26 (emphasis added).  But the Center for American 

Progress, an advocate for the one-percent and five-percent thresholds, estimates the statute 
covers 98% of S&P 500 companies and 28% of smaller publicly traded companies.  ECF 
No.  86  at  17  (citing  Center  for  American  Progress,  Fact  Sheet,  Nov.  21,  2019, 
tinyurl.com/4pcxhwdr).  Regardless, if § 211B.15 banned the speech of fewer corporations, 
that  would  not  solve  the  over-inclusiveness  problem.    Minnesota  cannot  create  a 
“categorical ban[] on speech that [is] asymmetrical to” its stated compelling interest.  
Citizens United, 

.                                         

(iii) “[U]nderinclusiveness can raise ‘doubts about whether the government is in fact 
pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.’”  
Williams-Yulee v. Fla. Bar, 

 (2015) (quoting Brown v. Ent. Merchants 
Ass’n, 

 (2011)).  And “[u]nderinclusiveness can also reveal that a law 
does not actually advance a compelling interest.”  Id. at 449.  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 v. Town of Gilbert, 

 (2015) (quoting White, 536 U.S. at 780).  Both 
concerns are implicated by § 211B.15’s underinclusiveness.                
The challenged provisions of § 211B.15 are substantially underinclusive.  Section 

211B.15 subdivision 4a regulates the political contributions and independent expenditures 
of  corporations  and  limited  liability  companies.    It  does  not  regulate  labor  unions, 
partnerships, nonprofits, cooperatives, or other business organizations and associations 
foreign citizens might just as easily use to participate in Minnesota elections.  See Bellotti, 

 (noting that the exclusion of trusts, “labor unions, and other associations 

undermines the plausibility of the State’s purported concern”).  The Board counters that 
“[t]here is no common governance structure that suggests or implies influence by persons 
that provide funding to the union or non-profit,” ECF No. 88 at 27, and contends “a statute 
is not invalid under the Constitution because it might have gone farther than it did,” 
Buckley, 

 (quotations omitted).  These points might be persuasive had the 
Board proffered evidence that minority foreign shareholders controlling or exercising 
influence over domestic corporations’ political expenditures was the most serious risk of 

foreign influence in Minnesota’s elections.  It did not.                  
There is more.  Section 211B.15 subdivision 1(e)(2)(iv) defines a foreign investor 
as an “individual outside of the United States.”  And a foreign-influenced corporation’s 
status is tested when the corporation makes a political expenditure.  See Minn. Stat. § 
211B.15 subdiv. 4b.  Under the plain language of the statute, if one foreign citizen owned 

a fifty percent stake in a domestic corporation, that corporation could make expenditures 
in Minnesota elections while that foreign citizen vacationed in the United States but not 
while that foreign citizen resided abroad.  A limited liability company owned by migrant 
workers could make political expenditures in local elections while those members are in 
the United States, but not while a member traveled overseas to visit family.  However, if 

the migrant workers formed a partnership or cooperative, their political contributions 
would always be allowed by § 211B.15 (regardless of any owner’s presence in the United 
States).  Because the statute tests the status of the corporation at the time expenditures are 
made, a corporation could make a political expenditure if a foreign national sold her shares 
the day before a political expenditure regardless of what actual influence that shareholder 

exerted on the organization’s political activities in the days preceding the expenditure.  
Moreover, although § 211B.15 prohibits foreign investors from “participat[ing] directly or 
indirectly in the corporation’s decision-making process,” Minn. Stat. § 211B.15 subdiv. 
1(d)(3), the challenged provisions would not forbid non-investor foreign board members 
to  direct  a  corporation’s  election  expenditures.    Taken  collectively,  the  challenged 
provisions thus “leave[] appreciable damage to [Minnesota’s] supposedly vital interest 
unprohibited.”  Reed, 

 (quotation omitted).                

(iv) Finally, the Board fails to show § 211B.15’s ban on political speech is “the least 
restrictive means” for addressing its compelling interest.  United States v. Playboy Ent. 
Grp., Inc., 

 (2000).  The FEC’s regulation prohibits foreign nationals 
from indirectly influencing federal, state, and local elections as follows: 
     A foreign national shall not direct, dictate, control, or directly 
     or indirectly participate in the decision-making process of any 
     person,  such  as  a  corporation,  labor  organization,  political 
     committee,  or  political  organization  with  regard  to  such 
     person’s  Federal  or  non-Federal  election-related  activities, 
     such  as  decisions  concerning  the  making  of  contributions, 
     donations, expenditures, or disbursements in connection with    
     elections for any Federal, State, or local office or decisions  
     concerning the administration of a political committee.         

(i).  The Board fails to explain why this regulation, focused on the source 
of the foreign influence rather than banning corporations’ political speech, is insufficient 
to advance Minnesota’s compelling interest.  If Minnesota’s concern is enforcement of 
such a regulation, the Board does not explain why disclaimer or disclosure requirements 
would not be satisfactory.  See Citizens United, 

 (“Disclaimer and disclosure 
requirements may burden the ability to speak, but . . . do not prevent anyone from 
speaking.”) (quotation omitted).  Or alternatively, a certification requirement.  See 

  (requiring  certifications  that  foreign  nationals  were  not 
involved in making decisions about political contributions).              
To summarize, the evidence suggesting that § 211B.15’s challenged provisions 
might advance Minnesota’s interest in preventing foreign influence in its elections is highly 
attenuated, and the challenged provisions are overinclusive, underinclusive, and not the 

least  restrictive  means  to  accomplish  Minnesota’s  stated  interest.    The  challenged 
provisions are not therefore narrowly tailored.  For these same reasons, these provisions 
fail exacting scrutiny.  Section 211B.15 does not “‘avoid unnecessary abridgment’ of First 
Amendment rights.”  McCutcheon, 

 (quoting Buckley, 

).  For 
this reason, it cannot survive exacting scrutiny’s rigorous review.  

  The Chamber will 

likely prevail on the merits of its First Amendment claim.                
                           2                                         
The Chamber also claims § 211B.15’s challenged provisions are preempted by the 
Federal Election Campaign Act.  The Supremacy Clause provides that the “Constitution, 
and the Laws of the United States which shall be made in Pursuance thereof . . . shall be 

the supreme Law of the Land.”  U.S. Const., art. VI, cl. 2.  Congress may preempt state 
statutes by exercising its power under the Supremacy Clause.  It may exercise this power 
expressly  or  impliedly.    “Express preemption occurs  where  a  federal  law  explicitly 
prohibits or displaces state regulation in a given field.”  Johnson v. MFA Petroleum Co., 

 (8th Cir. 2012).  Congress may impliedly preempt state law through 

conflict or field preemption.  Conflict preemption, as its name implies, occurs where a state 
law “directly conflicts with federal law.”  

  Direct conflict with federal law occurs “when 
compliance with both federal and state laws is impossible, and when a state law ‘stands as 
an obstacle to the accomplishment and execution of the full purposes and objectives of 
Congress.’”  Keller v. City of Fremont, 

 (8th Cir. 2013) (quoting Arizona 
v. United States, 

 (2012)).  “Where Congress occupies an entire field … 
even  complementary  state  regulation  is  impermissible.    Field preemption reflects  a 

congressional decision to foreclose any state regulation in the area, even if it is parallel to 
federal standards.”  Arizona, 

.  Because the Chamber challenges provisions 
of § 211B.15 on express, conflict, and field preemption grounds, each will be addressed in 
turn.                                                                     
                           a                                         

“Express preemption exists where Congress uses explicit pre-emptive language to 
express its purpose.”  In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Pracs. Litig., 

 (8th Cir. 2010) (quotation omitted).  The FECA includes such express 
language.  See 

.  The FECA states that its provisions and any regulations 
prescribed under its provisions “supersede and preempt any provision of State law with 

respect to election to Federal office.”  

  And the FEC has clarified through regulation 
that the FECA supersedes state law with respect to three categories of federal campaign 
activity.  See 

(b).  The Board does not dispute that § 211B.15 subdivisions 
4a–b would be preempted if its provisions applied to foreign-influenced corporations’ 
federal-election expenditures and contributions.  The parties dispute whether § 211B.15 

prohibits political expenditures in federal elections.                    
Section 211B.15 subdivision 4a prohibits foreign-influenced corporations from, 
among other things, making “a contribution to a candidate for nomination, election, or 
appointment to a public office or to a candidate’s principal campaign committee.”  Section 
211B.15 provides that “[f]or purposes of this section, the terms defined in this subdivision 
have the meanings given.  Unless otherwise provided, the definitions in section 10A.01 
also apply to this section.”  Minn. Stat. § 211B.15, subdiv. 1.  Section 211B.15 does not 

define candidate.  Section 10A.01 does.  It defines candidate as “an individual who seeks 
nomination or election as a state constitutional officer, legislator, or judge.”  Minn. Stat. § 
10A.01 subdiv. 10.  In other words, § 10A.01 expressly defines a candidate as an individual 
running for state office.                                                 
The  Chamber  counters  that  Minn.  Stat.  §  211B.01  defines  candidate  as  “an 

individual who seeks nomination or election to a federal, statewide, legislative, judicial, or 
local office . . . except candidates for president and vice-president of the United States.”  
Minn. Stat. § 211B.01 subdiv. 3.  And “[t]he definitions in chapter 200 and this section 
apply to this chapter.”  Minn. Stat. § 211B.15 is in the same chapter.  Minn. Stat. § 211B.01 
subdiv. 1.  If the definition of candidate in § 211B.01 subdivision 3 applies, § 211B.15 

prohibits foreign-influenced corporations from making contributions and expenditures to 
promote or defeat federal candidates.  And because § 211B.15 regulates contributions and 
expenditures in federal elections, the Chamber reasons, the statute is expressly preempted. 
But the Chamber fails to explain why § 211B.01 subdivision 3’s definition of 
candidate controls instead of § 10A.01 subdivision 10’s.  In H.F. No. 3, the Minnesota 

Legislature amended § 215B.15 to expressly incorporate § 10A.01’s definitions.  See 2023 
Minnesota Laws Chapter 34, art. 3, sec. 3–6.  And § 215B.15 subdivision 4a relies on 
multiple definitions from § 10A.01, including political committee, Minn. Stat. § 10A.01 
subdiv. 27, political fund, id. subdiv. 28, political party unit, id. subdiv. 30, ballot question, 
id. subdiv. 7, contribution, id. subdiv. 11, and expenditure, id. subdiv. 9.  None of those 
terms are defined by § 211B.01 or § 211B.15 subdivision 1.  It is not plausible that the 
Minnesota Legislature incorporated all of those terms expressly limited to state elections 

and state-election entities, see, e.g., Minn. Stat. § 10A.01 subdiv. 30 (defining a political 
party unit as “the state committee, the party organization within a house of the legislature, 
or any other party organization designated by the chair of the political party in an annual 
certification of party units provided to the board”), but intended “candidate” to be defined 
by Minn. Stat. § 211B.01.  Because the FECA only expressly preempts state laws with 

respect to elections of federal office, and the prohibitions in § 211B.15 subdivisions 4a–b 
are limited to state offices, the provisions are not expressly preempted by the FECA.2 
                           b                                         
State laws “are preempted when they conflict with federal law.”  Keller, 

.  Conflict preemption includes where “compliance with both federal and state 

regulations is a physical impossibility,” Arizona, 

 (quoting Florida Lime & 
Avocado Growers, Inc. v. Paul, 

, 142–43 (1963)), and when a state law “stands 
as an obstacle to the accomplishment and execution of the full purposes and objectives of 
Congress,”  

  (quoting  Hines,  312  U.S.  at  67).    Because  it  is  not  impossible  for 
corporations to comply with § 211B.15 subdivisions 4a–b and the FECA, only the latter 

type of conflict preemption is at issue here.  “What is a sufficient obstacle is a matter of 


2      If the Chamber were correct, the remedy would be to enjoin the application of 
§ 211B.15’s challenged provisions to federal elections, not to state and local elections.  See, 
e.g., Republican Party of N.M. v. King, 

, 1215–16 (D.N.M. 2012). 
judgment, to be informed by examining the federal statute as a whole and identifying its 
purpose and intended effects[.]”  Crosby v. Nat’l Foreign Trade Council, 

 (2000).  When Congress legislates in a field “which the States have traditionally 

occupied . . . we start with the assumption that the historic police powers of the States were 
not to be superseded by the Federal Act unless that was the clear and manifest purpose of 
Congress.”  Rice v. Santa Fe Elevator Corp., 

 (1947); Altria Grp., Inc. 
v. Good, 

 (2008).                                          
The parties dispute the application of this presumption.  An amicus argues that state 

elections are a field traditionally occupied by the states.  See ECF No. 98 at 10.  The 
Chamber replies that the “federal interest in this topic is dominant,” ECF No. 100 at 17, 
because the FECA regulates foreign nationals, and “any policy toward aliens is vitally and 
intricately interwoven with contemporaneous [federal] policies in regard to the conduct of 
foreign relations, the war power, and the maintenance of a republican form of government.”  

ECF No. 100 at 20 (quoting Harisiades v. Shaughnessy, 

, 588–89 (1952)).  
The Chamber further emphasizes that such regulations implicate the federal government’s 
national security interest.  ECF No. 100 at 17–18.                        
But the Chamber discounts Bluman’s rationale—the court in Bluman did not ground 
its decision in the federal government’s national security or foreign relation interests.  

Instead,  Bluman  reasoned  that  “[t]he  government may  exclude  foreign  citizens  from 
activities ‘intimately related to the process of democratic self-government.’”  Bluman, 

 (quoting Bernal v. Fainter, 

 (1984)).  And many of the 
cases Bluman cited for this proposition involved states (not the federal government) 
excluding foreign nationals.  Gregory v. Ashcroft, 

 (1991) (Missouri); Bernal, 

 (Texas); Foley v. Connelie, 

 (1978) (New York).  Bluman 
explained  that  “a  State’s  historical  power  to  exclude  aliens  from  participation  in  its 

democratic political institutions [is] part of the sovereign’s obligation to preserve the basic 
conception of a political community.”  Bluman, 

 (quoting Foley, 435 
U.S. at 295–96).  Because state elections are a traditional area of state regulation, and 
states’ historical authority to exclude aliens from participating in their democratic political 
institutions includes prohibiting foreign nationals from spending money in their elections, 

it seems fair to apply the presumption against preemption here.           
Moreover, the FECA includes an express preemption clause.  When Congress 
includes an express preemption clause in a statute, and a state statute is outside the scope 
of that express clause, there is a presumption against implied preemption.  Cipollone v. 
Liggett Grp., Inc., 

 (1992); see also WinRed, Inc. v. Ellison, 

, 

944 (8th Cir. 2023).  Here, Congress expressly preempted state laws only “with respect to 
election to Federal office.”  See  

 (emphasis added).  The FEC’s 
rulemaking confirms this.  See 

(b) (describing three areas where federal 
law supersedes state law concerning federal candidates).  The FEC’s regulation states that 
federal  law  supersedes  state  law  concerning  the  “[l]imitation  on  contributions  and 

expenditures  regarding  Federal  candidates  and  political  committees.”    

(b)(3).  If Congress or the FEC wanted to prohibit states from regulating foreign 
nationals’ (or corporations’) political contributions and expenditures in state elections, they 
could have expressly done so.  Neither did.                               
The Chamber does not overcome these presumptions.  The Chamber broadly argues 
the statute “conflict[s] with Congress’s intended national uniform scheme of regulation to 
protect all elections,” ECF No. 100 at 17, and “the FEC’s choices to narrowly regulate state 

and local elections strongly implies their joint intent to create a uniform national standard, 
which the statute would undermine if not enjoined,” ECF No. 100 at 19.  The Chamber 
seems to be referring to cases such as Arizona v. United States, where the Court found that 
state law would “interfere with the careful balance struck by Congress with respect to 
unauthorized employment of aliens.”  567 U.S. at 406.  But Congress’s prohibition on 

foreign nationals from making contributions and independent expenditures is a single 
statutory section occupying less than a single page.  See 

.  The Chamber 
cites no analogous case where a court has found such a provision to be a “comprehensive 
federal scheme intentionally leav[ing] a portion of the regulated field without controls.”  
Puerto Rico Dep’t of Consumer Affs. v. Isla Petroleum Corp., 

 (1988).  

In Arizona, for example, the Supreme Court found the Immigration Reform and Control 
Act was “a comprehensive framework for ‘combating the employment of illegal aliens.’”  
567 U.S. at 404 (citing Hoffman Plastic Compounds, Inc. v. NLRB, 

 
(2002)).  

 is not comparable.  Looking past volume, Congress has not 
regulated, for example, foreign contributions or expenditures on local ballot initiatives, and 

it is not clear Congress intentionally left this door open as part of some comprehensive 
framework.  See Fed. Election Comm’n, Stmt. of Reasons of Chair Broussard, at *3 
(Nov. 2, 2021), https://www.fec.gov/files/legal/murs/7523/7523_28.pdf.  Congress does 
not preempt state law every time it considers regulating a topic but ultimately declines to 
do so.  See Puerto Rico, 

.  And when Congress regulates, it just as often 
creates a floor rather than a uniform rule preempting stricter state laws.  See Atherton v. 
F.D.I.C., 

 (1997).  Nor is there any indication the FEC has taken such a 

broad view of the FECA’s preemptive reach.  See ECF No. 98 at 8 n.4 (citing Fed. Election 
Comm’n,  Suppl.  Stmt.  of  Reasons  of  Comm’r  Goodman,  at  *2  (May  1,  2015), 
https://www.fec.gov/files/legal/murs/6678/15044372967.pdf).  Simply put, the Chamber 
has not met its burden: to demonstrate the FECA’s prohibition on foreign contributions and 
expenditures is the type of comprehensive regulatory scheme that preempts Minnesota’s 

stricter regulations in its own elections.                                
                           c                                         
“Field preemption reflects a congressional decision to foreclose any state regulation 
in the area, even if it is parallel to federal standards.”  Arizona, 

.  It occurs 
when the Government has regulated a field “so comprehensively that it has left no room 

for  supplementary  state  legislation.”    Murphy  v.  Nat’l  Collegiate  Athletic  Ass’n, 
584 U.S. ---, 

 (2018) (quoting R.J. Reynolds Tobacco Co. v. Durham 
Cnty., 

 (1986)).  But there is little difference between the Court’s 
conflict-preemption  jurisprudence,  when  state  laws  are  obstacles  to  comprehensive 
regulatory schemes, and field preemption.  See Arizona, 567 U.S. at 400–08.  The same 

presumptions  against  implied  preemption  apply.    And  the  Chamber  fails  to  clearly 
distinguish between the arguments in its briefing.  See ECF No. 100 at 17–20.  Therefore, 
the Chamber’s field preemption argument will likely fail on the merits for the same reason 
its conflict preemption argument will likely fail.                        
                           B                                         
The second Dataphase factor is irreparable harm.  “The loss of First Amendment 
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  

Elrod  v.  Burns,  

  (1976)  (plurality  opinion);  see  also  Johnson  v. 
Minneapolis Park & Recreation Bd., 

, 1101–02 (8th Cir. 2013) (same).  The 
Chamber contends many of their members “have refrained and will each refrain from 
making contributions that may be used for independent expenditures or ballot questions, 
due to the statute’s prohibitions.”  ECF No. 60 at 22.  The Chamber offers affidavits from 

CEOs of its member-corporations to support this.  See ECF Nos. 62–64.     
The Board counters that “Plaintiff’s need for immediate relief is undercut by its own 
delay in bringing a motion for injunctive relief.”  ECF No. 88 at 33.  This is a fair concern 
in the abstract.  “[A] party requesting a preliminary injunction must generally show 
reasonable diligence.”  Benisek v. Lamone, 

 (2018).  “[T]he failure 

to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for 
preliminary relief and suggests that there is, in fact, no irreparable injury.”  Aviva Sports, 
Inc. v. Fingerhut Direct Mktg., Inc., No. 09-cv-1091 (JNE/JSM), 

, at *1 
(D. Minn. May 25, 2010) (quoting Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 

, 144 (2d Cir. 2005)); see also Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 

 (8th Cir. 1999).                                        
But these cases are not comparable to what we have here.  In Hubbard Feeds, the 
plaintiff became “aware of . . . infringing conduct” in 1988, but “delay[ed] nine years in 
asserting its rights.”  Hubbard Feeds, 

.  In Aviva Sports, the plaintiff 
knew  about  the  defendant’s  “allegedly  false  advertisements  for  several  years  before 
bringing [the] action,” and even after bringing the action waited more than nine months to 
file a motion for a preliminary injunction.  Aviva Sports, 

, at *1.  And in 

Benisek, “appellants did not move for a preliminary injunction in the District Court until 
six years, and three general elections, after the 2011 map was adopted, and over three years 
after the plaintiffs’ first complaint was filed.”  Benisek, 138 S.Ct. at 1944. 
The Chamber, by comparison, moved for a preliminary injunction roughly five 
months after the statute was passed in May 2023.3  Five months is materially different than 

several years, six years, and nine years.  Moreover, in each of those prior cases the alleged 
irreparable harm was ongoing for several years when a preliminary injunction was sought.  
By contrast, the Chamber seeks an injunction before the statute becomes effective on 
January 1, 2024.  Despite claiming that speech is already being chilled, the principal harm 
at issue is the prohibition of speech, backed by criminal and civil sanctions, that will come 

into effect on January 1, 2024.  In other words, the five-month delay here is not dispositive. 
                           C                                         
The remaining two Dataphase factors, the balance of harms and the public interest, 
don’t change anything.  “[T]he determination of where the public interest lies also is 


3    Governor Tim Walz signed the bill, H.F. No. 3, into law on May 5, 2023.  2023 
Minnesota  Laws  Chapter  34,  art.  3,  sec.  3–6.    The  Chamber  filed  its  motion  for  a 
preliminary injunction on October 24, 2023, ECF No. 58, but the Board asserts “[t]he 
Chamber did not bring its motion for preliminary injunction until September 28, 2023,” 
ECF No. 88 at 33.  September 28, 2023, appears to be when the Chamber first met and 
conferred with Defendants.  See ECF No. 68 (“Plaintiff then waited another three months, 
until September 28, 2023, to inform the parties that it planned to file a preliminary 
injunction motion the following week.”).                                  
dependent on the determination of the likelihood of success on the merits of the First 
Amendment challenge because it is always in the public interest to protect constitutional 
rights.”  Phelps-Roper v. Nixon, 

 (8th Cir. 2007), modified on reh’g, 

  (8th  Cir.  2008).    “The  balance  of  equities,  too,  generally  favors  the 
constitutionally-protected freedom of expression.”  

  Where, as here, the Chamber is 
likely to prevail on its First Amendment claim, the remaining Dataphase factors strongly 
support a preliminary injunction.                                         

Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Plaintiff  Minnesota  Chamber  of  Commerce’s  Motion  for  Preliminary 
Injunction [ECF No. 58] is GRANTED;                                       
2.   Defendant Choi, in his official capacity, is enjoined from enforcing the 

“foreign influenced corporation” provisions in amended Minn. Stat. § 211B.15, those 
provisions being subdivisions 1(b), 1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 
7b(2), and any related rules and regulations;                             
3.   The  Board,  in  their  official  capacities,  are  enjoined  from  enforcing  the 
“foreign influenced corporation” provisions in amended Minn. Stat. § 211B.15, those 

provisions being subdivisions 1(b), 1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 
7b(2), and any related rules and regulations;                             
4.   Defendants, in their official capacities, are enjoined from pursuing civil or 
criminal  liability  for  any  alleged  violations  of  the  “foreign  influenced  corporation” 
provisions in amended Minn. Stat. § 211B.15, those provisions being subdivisions 1(b), 
1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 7b(2), and any related rules and 
regulations, that allegedly occur during the term of this preliminary injunction; and 

5.   Plaintiff Minnesota Chamber of Commerce may seek leave to amend its 
Complaint if it believes new developments justify amendment, and any such motions shall 
be filed with the undersigned.                                            
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: December 20, 2023           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Minnesota Chamber of Commerce, a       File No. 23-cv-2015 (ECT/JFD)      
Minnesota nonprofit corporation,                                          

          Plaintiff,                                                 

v.                                       OPINION AND ORDER                

John Choi, in his official capacity as County                             
Attorney for Ramsey County, Minnesota;                                    
George Soule, in his official capacity as                                 
Chair of the Minnesota Campaign Finance                                   
and Public Disclosure Board; David Asp, in                                
his official capacity as Vice Chair of the                                
Minnesota Campaign Finance and Public                                     
Disclosure Board; Carol Flynn, in her                                     
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; Margaret Leppik, in her                                 
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; Stephen Swanson, in his                                 
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board; and Faris Rashid, in his                                
official capacity as Member of the                                        
Minnesota Campaign Finance and Public                                     
Disclosure Board,                                                         
Defendants.                                                          

________________________________________________________________________  
Thomas H. Boyd, Kyle R. Kroll, Cianna Halloran, Jordan Mogensen, and Tammera R. 
Diehm,  Winthrop  &  Weinstine,  P.A.,  Minneapolis,  MN,  for  Plaintiff  the  Minnesota 
Chamber of Commerce.                                                      
Kristine K. Nogosek and Kevin Scott Plaisance, Ramsey County Attorney’s Office, St. 
Paul, MN, for Defendant John Choi.                                        
Janine  Wetzel  Kimble,  Matthew  Mason,  Nathan  J.  Hartshorn,  Minnesota  Office  of 
Attorney General, St. Paul, MN, for Defendants George Soule, David Asp, Carol Flynn, 
Margaret  Leppik,  Stephen  Swanson,  and  Faris  Rashid,  in  their  official  capacities  as 
Members of the Minnesota Campaign Finance and Public Disclosure Board.    
________________________________________________________________________  
In this case, Plaintiff Minnesota Chamber of Commerce, a nonprofit membership 
organization representing more than 6,000 Minnesota businesses, asserts First Amendment 
and Supremacy Clause challenges to provisions of the Minnesota Fair Campaign Practices 
Act.  The challenged provisions—which are scheduled take effect January 1, 2024—would 
forbid some (but not all) business organizations with foreign ownership from exercising 
their First Amendment free-speech rights in connection with elections for state and local 
public office and ballot questions in Minnesota.  These free-speech prohibitions have teeth 
in the form of criminal and civil consequences.  Important here, the extent of foreign 
ownership necessary to trigger the statute’s prohibitions is not great: a foreign ownership 
interest of as little as one percent may qualify.  Defendants are the Ramsey County Attorney 

and members of the Minnesota Campaign Finance and Public Disclosure Board.  The 
Ramsey County Attorney (along with all County Attorneys in Minnesota) and the Board 
are among the state officials empowered to enforce the challenged statute. 
The Chamber moved for a preliminary injunction, seeking to enjoin Defendants 
from enforcing subdivisions 4a and b of the challenged statute, Minn. Stat. § 211B.15.  
ECF No. 58.  The motion will be granted because the Chamber is likely to prevail on the 

merits of its First Amendment challenge.  Preventing foreign influence on Minnesota 
elections  is  a  compelling  state  interest  in  the  abstract.    The  problem  is  that  settled 
constitutional principles require any state statute that burdens—or, as here, outlaws—
political  speech  to  be  narrowly  tailored  to  achieving  that  compelling  interest.    The 
challenged provisions are not narrowly tailored in the sense our Constitution requires.  
                           I                                         

Governor Tim Walz signed H.F. No. 3 into law on May 5, 2023.  2023 Minnesota 
Laws Chapter 34, art. 3, sec. 3–6.  H.F. No. 3 amended Minn. Stat. § 211B.15 to prohibit 
“foreign-influenced corporations” from making political contributions and independent 
expenditures in Minnesota’s elections.  As noted above, the amended statute becomes 
effective January 1, 2024.  2023 Minnesota Laws Chapter 34, art. 3, sec. 3–6. 

For the statute’s purposes, a “corporation” is defined as:           
     (1) a corporation organized for profit that does business in this 
     state;                                                          

     (2) a nonprofit corporation that carries out activities in this 
     state; or                                                       

     (3) a limited liability company formed under chapter 322C, or   
     under similar laws of another state, that does business in this 
     state.                                                          

Minn. Stat. § 211B.15 subdiv. 1(c)(1)–(3).  Although the “corporation” definition in 
subdivision 1(c) includes nonprofit corporations, the statute later makes clear that the 
challenged provisions are not intended to regulate the political activities of nonprofit 
corporations.  Minn. Stat. § 211B.15 subdiv. 1(d).                        
The statute defines a foreign-influenced corporation as a for-profit corporation or 
limited liability company for which at least one of the following conditions is met: 
     (1) a single foreign investor holds, owns, controls, or otherwise 
     has direct or indirect beneficial ownership of one percent or   
     more  of  the  total  equity,  outstanding  voting  shares,     
     membership units, or other applicable ownership interests of    
     the corporation;                                                

     (2) two or more foreign investors in aggregate hold, own,       
     control,  or  otherwise  have  direct  or  indirect  beneficial 
     ownership  of  five  percent  or  more  of  the  total  equity, 
     outstanding  voting  shares,  membership  units,  or  other     
     applicable ownership interests of the corporation; or           

     (3) a foreign investor participates directly or indirectly in the 
     corporation’s  decision-making  process  with  respect  to  the 
     corporation’s political activities in the United States.        

Minn. Stat. § 211B.15 subdiv. 1(d)(1)–(3).  A foreign investor is defined, in turn, as a 
person or entity that:                                                    
     (1) holds, owns, controls, or otherwise has direct or indirect  
     beneficial  ownership  of  equity,  outstanding  voting  shares, 
     membership units, or otherwise applicable ownership interests   
     of a corporation; and                                           

     (2) is any of the following:                                    

     (i) a government of a foreign country;                          

     (ii) a political party organized in a foreign country;          

     (iii) a partnership, association, corporation, organization, or 
     other combination of persons organized under the laws of or     
     having its principal place of business in a foreign country;    

     (iv) an individual outside of the United States who is not a    
     citizen or national of the United States and who is not lawfully 
     admitted for permanent residence in the United States; or       

     (v) a corporation in which a foreign investor as defined in items 
     (i) to (iv) holds, owns, controls, or otherwise has directly or 
     indirectly acquired beneficial ownership of equity or voting    
     shares in an amount that is equal to or greater than 50 percent 
     of the total equity or outstanding voting shares.               
Minn. Stat. § 211B.15 subdiv. 1(e).                                       
The challenged statute provides that a foreign-influenced corporation must not: 
     (1)  make  an  expenditure,  or  offer  or  agree  to  make  an 
     expenditure,  to  promote  or  defeat  the  candidacy  of  an   
     individual for nomination, election, or appointment to a public 
     office;                                                         

     (2) make contributions or expenditures to promote or defeat a   
     ballot question, or to qualify a question for placement on the  
     ballot;                                                         

     (3) make a contribution to a candidate for nomination, election, 
     or appointment to a public office or to a candidate’s principal 
     campaign committee; or                                          

     (4) make a contribution to a political committee, political fund, 
     or political party unit.                                        

Minn.  Stat.  §  211B.15  subdiv.  4a(a)(1)–(4).    To  avoid  circumvention,  “[a] 
foreign-influenced corporation must not make a contribution or donation to any other 
person or entity with the express or implied condition that the contribution or donation or 
any part of it be used for any of the purposes prohibited by this subdivision.”  Minn. Stat. 
§ 211B.15 subdiv. 4a(b).                                                  
To  enforce  these  prohibitions,  §  211B.15  includes  a  compliance-certification 
requirement.  A corporation or limited liability company “that makes a contribution or 
expenditure authorized by subdivision 3 or 4 must submit a certification to the Campaign 
Finance and Public Disclosure Board that it was not a foreign-influenced corporation as of 
the date the contribution or expenditure was made.”  Minn. Stat. § 211B.15 subdiv. 4b.  
“The certification must be submitted within seven business days after the contribution or 
expenditure is made and must be signed by the corporation’s chief executive officer after 
reasonable inquiry, under penalty of perjury.”  Id.                       
The  challenged  provisions  are  backed  by  civil  and  criminal  penalties.    A 

representative of a corporation or limited liability company “acting on behalf of the 
corporation who violates this section is subject to a civil penalty of up to ten times the 
amount of the violation, but in no case more than $10,000.”  Minn. Stat. § 211B.15 subdiv. 
6(a).  A knowing violation of § 211B.15 is a crime.  Id. subdiv. 6(b).  An individual who 
knowingly violates § 211B.15 on behalf of a corporation may be fined up to $20,000 or 

imprisoned for up to five years.  Id.  A corporation or limited liability company that violates 
§ 211B.15 is subject to the same civil penalties as an individual.  Id. subdiv. 7(a).  A 
corporation or limited liability company’s knowing violation is also a crime.  Id. subdiv. 
7(b).  “A corporation convicted of knowingly violating this section is subject to a fine not 
greater than $40,000.  A convicted domestic corporation may be dissolved as well as fined.  

If a foreign or nonresident corporation is convicted, in addition to being fined, its right to 
do business in this state may be declared forfeited.”  Id.                
The Chamber filed the operative eight-count Complaint on June 30, 2023.  Compl. 
[ECF No. 1].  On behalf of itself and its members, the Chamber seeks a declaration 
“Minnesota Statutes sections 211B.15, subds. 1 (a), (b), (c), (d), (e), 4a, and 4b” are 

unconstitutional because they violate the First Amendment.  Compl. ¶¶ 85–96, 142–55.  
The Chamber also seeks a declaration that those same subdivisions are preempted via the 
Supremacy Clause by the Federal Election Campaign Act (“FECA”).  Id. ¶¶ 116–26, 177–
87.  The Chamber seeks injunctive relief on behalf of itself and its members.  Id. 97–115, 
127–41, 156–76, 188–202.  The Chamber filed a motion seeking a preliminary injunction 
on October 24, 2023.  ECF No. 58.                                         
                           II                                        

Before reaching the merits, it is helpful to confirm the Chamber’s Article III 
standing.  The Chamber must allege facts plausibly showing it possesses Article III 
standing.  See Jones v. Jegley, 

, 1103–05 (8th Cir. 2020); see also Rodgers 
v. Bryant, 

, 454–55 (8th Cir. 2019).                          
The Chamber is an organization that may seek judicial relief from an injury to its 

members as a representative of those members.  Students for Fair Admissions, Inc. v. 
President & Fellows of Harvard Coll., 

, 199 (2023).  To invoke organizational 
standing, the Chamber must demonstrate that “(a) its members would otherwise have 
standing to sue in their own right; (b) the interests it seeks to protect are germane to the 
organization’s purpose; and (c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.”  Id. (quoting Hunt v. Washington 
State Apple Advert. Comm’n, 

 (1977)).  The Chamber “need not establish 
that all of its members would have standing to sue individually so long as it can show that 
‘any one of them’ would have standing.”  Iowa League of Cities v. E.P.A., 

 (8th Cir. 2013) (quoting Warth v. Seldin, 

 (1975)).  

Here, the Chamber has done more than plausibly show its standing.  The Chamber 
submitted declarations from CEOs of member-corporations who testify their corporations 
will be prohibited from making election expenditures when § 211B.15 subdivision 4a 
becomes effective.  See ECF Nos. 62–64.  This declaration testimony describes an injury, 
caused by the statute, that will be redressed by enjoining enforcement of the statute.  The 
First Amendment interests the Chamber seeks to protect are germane to the Chamber’s 
stated mission of “lead[ing] the statewide business community to advance pro-business, 

responsible public policy.”  ECF No. 61 ¶¶ 2–7.  And the Chamber seeks declaratory and 
injunctive relief that does not require “individualized proof and . . . [is] thus properly 
resolved in a group context.”  Hunt, 

.1                    
                          III                                        
A preliminary injunction is an “extraordinary remedy.”  Winter v. Nat. Res. Def. 

Council, Inc., 

 (2008) (citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  The Eighth Circuit’s familiar Dataphase decision describes the 
list of considerations applied to decide whether to grant preliminary injunctive relief: “(1) 
the likelihood of the movant’s success on the merits; (2) the threat of irreparable harm to 
the movant in the absence of relief; (3) the balance between that harm and the harm that 

the relief would cause to the other litigants; and (4) the public interest.”  Lexis-Nexis v. 
Beer, 

 (D. Minn. 1999) (citing Dataphase Sys., Inc. v. C L Sys., 
Inc., 

, 112–14 (8th Cir. 1981) (en banc)).  The core question is whether the 
equities “so favor[] the movant that justice requires the court to intervene to preserve the 
status quo until the merits are determined.”  Dataphase, 

 (footnote omitted).  

“The burden of establishing the four factors lies with the party seeking injunctive relief.”  


1    At the hearing on the Chamber’s motion, the Board did not seriously dispute that 
the Chamber had adequately demonstrated organizational standing at this stage of the case. 
CPI Card Grp., Inc. v. Dwyer, 

 (D. Minn. 2018) (citing Watkins, 

).                                                         
                           A                                         

“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (citations 
and internal quotation marks omitted).  “[A] party seeking a preliminary injunction of the 
implementation of a state statute must demonstrate more than just a ‘fair chance’ that it 
will succeed on the merits.”  Planned Parenthood Minn., N.D., S.D. v. Rounds, 

, 731–32 (8th Cir. 2008).  Instead, the movant must “make[] a threshold showing that 
it is likely to prevail on the merits.”  

.  “[T]he absence of a likelihood of success 
on the merits strongly suggests that preliminary injunctive relief should be denied.”  CDI 
Energy Servs. v. W. River Pumps, Inc., 

 (8th Cir. 2009).  Conversely, 
when a court determines a plaintiff is “likely to win on the merits of their First Amendment 

claim, a preliminary injunction is proper.”  Minn. Citizens Concerned for Life, Inc. v. 
Swanson, 

 (8th Cir. 2012).                               
                           1                                         
The Chamber’s first argument is that the challenged provisions of Minn. Stat. § 
211B.15 violate the First Amendment.  ECF No. 60 at 21.  The First Amendment provides 

that “Congress shall make no law . . . abridging the freedom of speech.”  U.S. Const. 
amend. I. “[T]he First Amendment ‘has its fullest and most urgent application’ to speech 
uttered during a campaign for political office.”  Eu v. San Francisco Cnty. Democratic 
Cent. Comm., 

 (1989) (quoting Monitor Patriot Co. v. Roy, 

 (1971)).  The Supreme Court has “rejected the argument that political speech of 
corporations or other associations should be treated differently under the First Amendment 
simply because such associations are not ‘natural persons.’”  Citizens United v. Fed. 

Election Comm’n, 

 (2010) (quoting First Nat. Bank of Bos. v. Bellotti, 

  (1978)).    “Corporations  and  other  associations,  like  individuals, 
contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that 
the First Amendment seeks to foster.”  Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 

 (1986) (quoting Bellotti, 

).  Although “foreign organizations 

operating abroad have no First Amendment rights,” Agency for Int’l Dev. v. All. for Open 
Soc’y Int’l, Inc., 591 U.S. ---, 

 (2020), domestic corporations are 
protected under the First Amendment.  Citizens United, 

 (collecting cases).  
There is no support for the proposition that corporations lose their First Amendment 
protections merely because a foreign national purchases some share or interest, no matter 

how small.  Cf. 

  After all, “American corporations . . . [are] members of the American 
political community.”  Bluman v. Fed. Election Comm’n, 

 (D.D.C. 
2011), aff’d, 

 (2012).  And no case holds that a corporation ceases to be 
“American” by virtue of any quantum of foreign ownership.                 
Section 211B.15 subdivision 4a prohibits foreign-influenced corporations from 

making political contributions and independent expenditures.  Minnesota enforces this ban 
with civil and criminal penalties.  See Minn. Stat. § 211B.15 subdiv. 6–7.  “Independent 
expenditures are indisputably political speech,” Minn. Citizens Concerned for Life, Inc. v. 
Swanson, 

 (8th Cir. 2012), and “[l]aws that burden political speech are 
‘subject  to  strict  scrutiny,’” Citizens  United,  

  (quoting Fed.  Election 
Comm’n v. Wis. Right To Life, Inc. (“WRTL”), 

 (2007)).  Under strict 
scrutiny, the “Government must prove that [§ 211B.15] furthers a compelling interest and 

is narrowly tailored to achieve that interest.”  WRTL, 

.   
In general, courts apply a different standard of review when political contributions 
are regulated.  “[R]estrictions on political contributions have been treated as merely 
‘marginal’ speech restrictions subject to relatively complaisant review under the First 
Amendment, because contributions lie closer to the edges than to the core of political 

expression.”  Fed. Election Comm’n v. Beaumont, 

 (2003).  “While 
contributions may result in political expression if spent by a candidate or an association 
. . ., the transformation of contributions into political debate involves speech by someone 
other than the contributor.”  Buckley v. Valeo, 

 (1976).  Citizens United 
“cast[] doubt on Beaumont, leaving its precedential value on shaky ground.”  Swanson, 

 n.12.  However, the Supreme Court has (so far) declined to reconsider the 
distinction between contributions and expenditures.  See McCutcheon v. Fed. Election 
Comm’n,  

  (2014)  (“[W]e  see  no  need  in  this  case  to 
revisit Buckley’s distinction between contributions and expenditures and the corollary 
distinction in the applicable standards of review.”); Fed. Election Comm’n v. Cruz, 

, 305 (2022).  Because the Supreme Court has not overruled its earlier precedent, 
exacting scrutiny remains the standard of review when political contributions are regulated.  
See Agostini v. Felton, 

 (1997).   Under exacting scrutiny, “the challenged 
law must advance a sufficiently important state interest and employ means closely drawn 
to avoid unnecessary abridgment of First Amendment freedoms.”  Free & Fair Election 
Fund v. Mo. Ethics Comm’n, 

 (8th Cir. 2018).             
Although the Board acknowledges the distinction, it “assumes for purposes of this 

motion that strict scrutiny applies.”  ECF No. 88 at 23.  The Chamber and amici apply strict 
scrutiny without acknowledging the distinction.  The better answer, for purposes of this 
order, is to follow the heightened standard of review the Board assumes applies.  But it 
makes no difference in the end.  Both tests “assess the fit between the stated governmental 
objective and the means selected to achieve that objective.”  McCutcheon, 

.  

“Or to put it another way, if a law that restricts political speech does not ‘avoid unnecessary 
abridgment’ of First Amendment rights it cannot survive ‘rigorous’ review.”  

 (quoting 
Buckley,  

).    For  reasons  to  be  discussed,  the  political  contribution 
prohibitions in § 211B.15 would fail even under the “closely drawn” test for the same 
reasons the challenged provisions are not narrowly tailored.              

                           a                                         
The first prong of strict scrutiny is Minnesota’s compelling interest.  The Board 
contends “Minnesota has a compelling interest in protecting democratic self-governance 
in Minnesota from foreign influence.”  ECF No. 88 at 23.  For support, the Board relies on 
Bluman v. Federal Election Commission, 

 (D.D.C. 2011), aff’d, 

 (2012).  In Bluman, foreign citizens, who resided and worked in the United 
States on temporary work visas, challenged the constitutionality of 2 U.S.C. § 441e(a), a 
provision of the Bipartisan Campaign Reform Act.  Id. at 282–83.  Section 441e(a) 
prohibits foreign citizens from donating money to candidates in federal and state elections.  
Id.  The court rejected the First Amendment challenge, reasoning “[t]he 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 the U.S. political process.”  Id. at 288.  Bluman’s 
rationale expressly extends to foreign corporations, although the court declined “to analyze 
the circumstances under which a corporation may be considered a foreign corporation for 
purposes of First Amendment analysis.”  Id. at 292 n.4.                   
The Supreme Court’s summary affirmance renders Bluman binding precedent, 

Hicks  v.  Miranda,  

  (1975),  although  “the precedential effect  of 
a summary affirmance can  extend  no  farther  than  the  precise  issues  presented  and 
necessarily decided by those actions,” Ill. State Bd. of Elections v. Socialist Workers Party, 

 (1979) (quotations omitted).  From Bluman, it follows that Minnesota 
has  a  compelling  interest  to  limit  the  participation  of  foreign  citizens  and  foreign 

corporations in activities of American democratic self-government, including spending 
money to expressly advocate for or against a political candidate.  Bluman, 800 F. Supp. 2d 
at 289–90 (“Spending money to contribute to a candidate or party or to expressly advocate 
for  or  against  the election of  a  political  candidate  is  participating  in  the  process  of 
democratic self-government.”).                                            

The Chamber seems to challenge the presence of a compelling interest when it 
argues that the “professed intent to limit ‘foreign influence’ in domestic elections is a 
pretext” to limit corporate spending in elections, ECF No. 60 at 26, but this contention is 
not persuasive.  To support this point, the Chamber relies on statements from the legislative 
record.  See e.g., ECF No. 60 at 9 (“[T]he stated goal of this bill is to get political spending 
out of elections[.]”).  As the Board points out, the legislative record includes many 
references to Minnesota’s stated goal of limiting foreign influence.  ECF No. 88 at 14–16.  

Regardless, the Chamber’s subjective-intent analysis would seem to flip the strict-scrutiny 
test on its head.  As the Supreme Court explained in the equal protection context, “the 
purpose of strict scrutiny is to ‘smoke out’ illegitimate [purposes].”  City of Richmond v. 
J.A. Croson Co., 

 (1989).  As in Citizens United, the better approach is 
to rigorously test Minnesota’s stated compelling interest.                

The scope of the compelling interest also deserves clarification in view of arguments 
advanced by the Board.  The Board contends “Bluman could be read to permit restrictions 
on election activities of corporations with any equity held by foreign investors.”  ECF No. 
88 at 28.  And it further argues that § 211B.15 “simply makes sure entities contributing to 
our political process are, indeed, associations of U.S. citizens.”  ECF No. 88 at 25.  The 

Board implies, in other words, that Minnesota has a compelling interest to prohibit all 
political expenditures by a corporation with even a single foreign shareholder to prevent 
foreign influence in the process of democratic self-government.           
Not so.  For several reasons.  Although Citizens United declined to “reach the 
question  whether  the  Government  has  a  compelling  interest  in  preventing  foreign 

individuals or associations from influencing our Nation’s political process,” 

, Justice Kennedy observed § 441b would be overbroad (even if the interest was 
compelling) because § 441b was “not limited [to] corporations or associations that were 
created in foreign countries or funded predominately by foreign shareholders,” id.  In other 
words, Justice Kennedy suggested there could be a compelling foreign-influence interest 
to ban the independent expenditures of corporations “funded predominately by foreign 
shareholders.”  One percent is a far cry from predominately.  Bluman serves the Board no 

better.  Because Bluman concerned individuals, the court had “no occasion to analyze the 
circumstances under which a corporation may be considered a foreign corporation for 
purposes of First Amendment analysis.”  Bluman, 

 n.4.   
The better answer is that preventing the exercise of First Amendment-protected 
political speech by a corporation with foreign shareholders, without more, does not alone 

represent a compelling interest.  As Bluman explained, “American corporations . . . [are] 
members of the American political community.”  Bluman, 

.  And 
although Bluman found § 441e(a)’s indirect prohibition constitutional, it does not follow 
that a foreign shareholder indirectly participates in our national political process simply by 
possessing shares.  Instead, Minnesota’s compelling interest to prevent foreign nationals 

from  participating  in  our  national  political  process  extends  to  preventing  foreign 
nationals—including foreign shareholders of domestic corporations—from controlling or 
exercising influence over a corporation’s election-expenditures.          
                           b                                         
The second prong of the strict scrutiny analysis is narrow tailoring.  “A narrowly 

tailored [statute] is one that actually advances the state’s interest (is necessary), does not 
sweep too broadly (is not overinclusive), does not leave significant influences bearing on 
the  interest  unregulated  (is  not  underinclusive),  and  could  be  replaced  by  no  other 
regulation that could advance the interest as well with less infringement of speech (is the 
least-restrictive alternative).”  Republican Party of Minn. v. White, 

 (8th 
Cir. 2005) (collecting cases).  “[T]he seriousness with which the regulation of core political 
speech  is  viewed  under  the  First  Amendment  requires  such  regulation  to  be 

as precisely tailored as possible.”  

  The challenged provisions of § 211B.15 are not 
narrowly tailored to achieve Minnesota’s compelling foreign-influence interest. 
(i)  The  first  step  is  considering  how  the  statute  advances  Minnesota’s  stated 
compelling interest—preventing foreign influence in its elections.  White, 

.  
To be actually necessary and advance the stated interest, “[t]here must be a direct causal 

link between the restriction imposed and the injury to be prevented.”  United States v. 
Alvarez, 

 (2012).  To this end, courts consider evidence of the harm the 
Government seeks to prevent.  McCutcheon, 572 U.S. at 219–21; Eu, 

; 
Cruz, 596 U.S. at 306–08; 281 Care Comm. v. Arneson, 

, 790–91 (8th Cir. 
2014).                                                                    

The Board and amicus Clean Elections identify several potential ways foreign 
shareholders  could  exercise  control  or  influence  over  a  corporation’s  political 
expenditures.  ECF 88 at 29 n.18 (“investors with [1%] ownership can easily get executive-
suite management on the phone.”), 30 (“The ability to present a shareholder proposal can 
create substantial leverage.”); ECF No. 92 at 10 (“Shareholders can also exert influence 

through actual or threatened proxy fights to change a company’s management.”).  And the 
Board contends that a foreign national with one percent ownership could exert such 
influence over a corporation, pointing to the SEC’s longstanding rule that shareholders 
with a one percent stake in a corporation may present a shareholder proposal.  ECF No. 88 
at 28.  Fair enough.  But explaining how foreign minority shareholders could exercise 
influence over corporations is not enough to justify § 211B.15’s ban on corporations’ 
political speech.  The Board must do more than “simply posit the existence of the disease 

sought to be cured.”  Col. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 

 (1996) (quoting Turner Broad. Sys., Inc. v. F.C.C., 

 
(1994)).  The Board fails to offer evidence that minority foreign shareholders have even 
once exercised influence or control over a corporation’s election expenditures in Minnesota 
or elsewhere.                                                             

The Board points to Uber and Airbnb spending millions of dollars on municipal 
ballot initiatives despite the presence of substantial foreign shareholders—Saudi Arabia 
held a stake in Uber, and Moscow-based DST Global held a stake in Airbnb.  ECF No. 88 
at 9; ECF No. 93-1 at 4–5.  But the Board does not identify how, or if, Saudi Arabia or 
DST  Global  exercised  control  or  influence  over  these  corporations’  election-related 

expenditures.  Nor is there any reason to infer, for example, that DST Global exercised 
such influence over Airbnb’s response to the “New York Legislature’s growing interest in 
regulating the industry,” ECF No. 93-1 at 4–5, election expenditures consistent with 
Airbnb’s core business interests.                                         
Next, the Board cites a handful of news articles involving domestic subsidiaries of 

foreign companies.  See ECF No. 88 at 9.  For example, in 2016, a company “controlled 
by two Chinese citizens” gave $3 million to support Jeb Bush’s run for president.  

  
Taking these articles at face value (and assuming, without deciding, that the political 
expenditures constituted foreign influence in a compelling sense), this only demonstrates 
how § 211B.15 slightly advances Minnesota’s foreign-influence interest.  This is because 
§  211B.15’s  one-percent  and  five-percent  thresholds  are  premised  on  the  danger  of 
minority foreign shareholders exercising control or influence.  Evidence that subsidiaries 

“controlled”  by  foreign  shareholders  have  (occasionally)  attempted  to  influence  the 
nation’s  political  process  does  not  justify  Minnesota’s  foreign  minority  shareholder 
concerns.                                                                 
The  Board’s  reliance  on  the  City  of  Seattle’s  findings  of  fact  is  equally 
unpersuasive.    Seattle  found,  for  example,  that  foreign  nationals  were  “unlawfully 

funneling foreign funding into local elections through third parties and shell corporations.”  
ECF No. 88 at 12.  But Minn. Stat. § 211B.15 does nothing to prevent foreign nationals 
from “funneling foreign funding into local elections” through straw donors and shell 
corporations owned by citizens.  And although not a requirement, the absence of any 
factual findings by the Minnesota Legislature is noteworthy.  Nor has the Board identified 

any examples of foreign influence in Minnesota elections.  It suffices to say, Minnesota 
has not demonstrated § 211B.15’s one-percent and five-percent thresholds are sufficiently 
linked to the harm sought to be prevented.  And courts “have never accepted mere 
conjecture as adequate to carry a First Amendment burden.”  Arneson, 

 
(quoting Nixon v. Shrink Mo. Gov’t PAC, 

 (2000)).        

(ii) A statute may fail narrow tailoring for being overinclusive.  See Brown v. Ent. 
Merchs. Ass’n, 

 (2011).  A statute is overinclusive when it “sweep[s] too 
broadly,” infringing further on First Amendment rights than is necessary to advance the 
compelling interest.  Wersal v. Sexton, 

 (8th Cir. 2012); White, 

.                                                              
Section 211B.15 classifies a corporation as “foreign-influenced” when a single 

shareholder holds a one-percent interest, or multiple shareholders collectively hold a five-
percent interest.  As discussed previously, corporations with foreign shareholders retain the 
First Amendment rights identified by Citizens United.  And § 211B.15’s prohibition on 
corporate independent expenditures, backed by criminal penalties, infringes on those 
corporations’ First Amendment rights.  Citizens United, 

.  A domestic 

corporation with a foreign shareholder holding one percent of its shares is banned from 
speaking, even if that foreign national is a passive investor who exercises no influence or 
control over the corporation’s election expenditures.  Because the Board has failed to 
identify evidence that minority foreign shareholders regularly (or ever) exercise influence 
or control over corporations’ political expenditures, the challenged provisions of § 211B.15 

sweep far too broadly.                                                    
Citizens  United  cautions  that  the  loss  of  corporations’  political  speech,  and 
consequently their First Amendment rights, must not to be taken lightly.  See Citizens 
United, 558 U.S. at 354–56.  The Board counters that the statute “affects very few 
companies overall.”  ECF No. 88 at 26 (emphasis added).  But the Center for American 

Progress, an advocate for the one-percent and five-percent thresholds, estimates the statute 
covers 98% of S&P 500 companies and 28% of smaller publicly traded companies.  ECF 
No.  86  at  17  (citing  Center  for  American  Progress,  Fact  Sheet,  Nov.  21,  2019, 
tinyurl.com/4pcxhwdr).  Regardless, if § 211B.15 banned the speech of fewer corporations, 
that  would  not  solve  the  over-inclusiveness  problem.    Minnesota  cannot  create  a 
“categorical ban[] on speech that [is] asymmetrical to” its stated compelling interest.  
Citizens United, 

.                                         

(iii) “[U]nderinclusiveness can raise ‘doubts about whether the government is in fact 
pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.’”  
Williams-Yulee v. Fla. Bar, 

 (2015) (quoting Brown v. Ent. Merchants 
Ass’n, 

 (2011)).  And “[u]nderinclusiveness can also reveal that a law 
does not actually advance a compelling interest.”  Id. at 449.  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 v. Town of Gilbert, 

 (2015) (quoting White, 536 U.S. at 780).  Both 
concerns are implicated by § 211B.15’s underinclusiveness.                
The challenged provisions of § 211B.15 are substantially underinclusive.  Section 

211B.15 subdivision 4a regulates the political contributions and independent expenditures 
of  corporations  and  limited  liability  companies.    It  does  not  regulate  labor  unions, 
partnerships, nonprofits, cooperatives, or other business organizations and associations 
foreign citizens might just as easily use to participate in Minnesota elections.  See Bellotti, 

 (noting that the exclusion of trusts, “labor unions, and other associations 

undermines the plausibility of the State’s purported concern”).  The Board counters that 
“[t]here is no common governance structure that suggests or implies influence by persons 
that provide funding to the union or non-profit,” ECF No. 88 at 27, and contends “a statute 
is not invalid under the Constitution because it might have gone farther than it did,” 
Buckley, 

 (quotations omitted).  These points might be persuasive had the 
Board proffered evidence that minority foreign shareholders controlling or exercising 
influence over domestic corporations’ political expenditures was the most serious risk of 

foreign influence in Minnesota’s elections.  It did not.                  
There is more.  Section 211B.15 subdivision 1(e)(2)(iv) defines a foreign investor 
as an “individual outside of the United States.”  And a foreign-influenced corporation’s 
status is tested when the corporation makes a political expenditure.  See Minn. Stat. § 
211B.15 subdiv. 4b.  Under the plain language of the statute, if one foreign citizen owned 

a fifty percent stake in a domestic corporation, that corporation could make expenditures 
in Minnesota elections while that foreign citizen vacationed in the United States but not 
while that foreign citizen resided abroad.  A limited liability company owned by migrant 
workers could make political expenditures in local elections while those members are in 
the United States, but not while a member traveled overseas to visit family.  However, if 

the migrant workers formed a partnership or cooperative, their political contributions 
would always be allowed by § 211B.15 (regardless of any owner’s presence in the United 
States).  Because the statute tests the status of the corporation at the time expenditures are 
made, a corporation could make a political expenditure if a foreign national sold her shares 
the day before a political expenditure regardless of what actual influence that shareholder 

exerted on the organization’s political activities in the days preceding the expenditure.  
Moreover, although § 211B.15 prohibits foreign investors from “participat[ing] directly or 
indirectly in the corporation’s decision-making process,” Minn. Stat. § 211B.15 subdiv. 
1(d)(3), the challenged provisions would not forbid non-investor foreign board members 
to  direct  a  corporation’s  election  expenditures.    Taken  collectively,  the  challenged 
provisions thus “leave[] appreciable damage to [Minnesota’s] supposedly vital interest 
unprohibited.”  Reed, 

 (quotation omitted).                

(iv) Finally, the Board fails to show § 211B.15’s ban on political speech is “the least 
restrictive means” for addressing its compelling interest.  United States v. Playboy Ent. 
Grp., Inc., 

 (2000).  The FEC’s regulation prohibits foreign nationals 
from indirectly influencing federal, state, and local elections as follows: 
     A foreign national shall not direct, dictate, control, or directly 
     or indirectly participate in the decision-making process of any 
     person,  such  as  a  corporation,  labor  organization,  political 
     committee,  or  political  organization  with  regard  to  such 
     person’s  Federal  or  non-Federal  election-related  activities, 
     such  as  decisions  concerning  the  making  of  contributions, 
     donations, expenditures, or disbursements in connection with    
     elections for any Federal, State, or local office or decisions  
     concerning the administration of a political committee.         

(i).  The Board fails to explain why this regulation, focused on the source 
of the foreign influence rather than banning corporations’ political speech, is insufficient 
to advance Minnesota’s compelling interest.  If Minnesota’s concern is enforcement of 
such a regulation, the Board does not explain why disclaimer or disclosure requirements 
would not be satisfactory.  See Citizens United, 

 (“Disclaimer and disclosure 
requirements may burden the ability to speak, but . . . do not prevent anyone from 
speaking.”) (quotation omitted).  Or alternatively, a certification requirement.  See 

  (requiring  certifications  that  foreign  nationals  were  not 
involved in making decisions about political contributions).              
To summarize, the evidence suggesting that § 211B.15’s challenged provisions 
might advance Minnesota’s interest in preventing foreign influence in its elections is highly 
attenuated, and the challenged provisions are overinclusive, underinclusive, and not the 

least  restrictive  means  to  accomplish  Minnesota’s  stated  interest.    The  challenged 
provisions are not therefore narrowly tailored.  For these same reasons, these provisions 
fail exacting scrutiny.  Section 211B.15 does not “‘avoid unnecessary abridgment’ of First 
Amendment rights.”  McCutcheon, 

 (quoting Buckley, 

).  For 
this reason, it cannot survive exacting scrutiny’s rigorous review.  

  The Chamber will 

likely prevail on the merits of its First Amendment claim.                
                           2                                         
The Chamber also claims § 211B.15’s challenged provisions are preempted by the 
Federal Election Campaign Act.  The Supremacy Clause provides that the “Constitution, 
and the Laws of the United States which shall be made in Pursuance thereof . . . shall be 

the supreme Law of the Land.”  U.S. Const., art. VI, cl. 2.  Congress may preempt state 
statutes by exercising its power under the Supremacy Clause.  It may exercise this power 
expressly  or  impliedly.    “Express preemption occurs  where  a  federal  law  explicitly 
prohibits or displaces state regulation in a given field.”  Johnson v. MFA Petroleum Co., 

 (8th Cir. 2012).  Congress may impliedly preempt state law through 

conflict or field preemption.  Conflict preemption, as its name implies, occurs where a state 
law “directly conflicts with federal law.”  

  Direct conflict with federal law occurs “when 
compliance with both federal and state laws is impossible, and when a state law ‘stands as 
an obstacle to the accomplishment and execution of the full purposes and objectives of 
Congress.’”  Keller v. City of Fremont, 

 (8th Cir. 2013) (quoting Arizona 
v. United States, 

 (2012)).  “Where Congress occupies an entire field … 
even  complementary  state  regulation  is  impermissible.    Field preemption reflects  a 

congressional decision to foreclose any state regulation in the area, even if it is parallel to 
federal standards.”  Arizona, 

.  Because the Chamber challenges provisions 
of § 211B.15 on express, conflict, and field preemption grounds, each will be addressed in 
turn.                                                                     
                           a                                         

“Express preemption exists where Congress uses explicit pre-emptive language to 
express its purpose.”  In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Pracs. Litig., 

 (8th Cir. 2010) (quotation omitted).  The FECA includes such express 
language.  See 

.  The FECA states that its provisions and any regulations 
prescribed under its provisions “supersede and preempt any provision of State law with 

respect to election to Federal office.”  

  And the FEC has clarified through regulation 
that the FECA supersedes state law with respect to three categories of federal campaign 
activity.  See 

(b).  The Board does not dispute that § 211B.15 subdivisions 
4a–b would be preempted if its provisions applied to foreign-influenced corporations’ 
federal-election expenditures and contributions.  The parties dispute whether § 211B.15 

prohibits political expenditures in federal elections.                    
Section 211B.15 subdivision 4a prohibits foreign-influenced corporations from, 
among other things, making “a contribution to a candidate for nomination, election, or 
appointment to a public office or to a candidate’s principal campaign committee.”  Section 
211B.15 provides that “[f]or purposes of this section, the terms defined in this subdivision 
have the meanings given.  Unless otherwise provided, the definitions in section 10A.01 
also apply to this section.”  Minn. Stat. § 211B.15, subdiv. 1.  Section 211B.15 does not 

define candidate.  Section 10A.01 does.  It defines candidate as “an individual who seeks 
nomination or election as a state constitutional officer, legislator, or judge.”  Minn. Stat. § 
10A.01 subdiv. 10.  In other words, § 10A.01 expressly defines a candidate as an individual 
running for state office.                                                 
The  Chamber  counters  that  Minn.  Stat.  §  211B.01  defines  candidate  as  “an 

individual who seeks nomination or election to a federal, statewide, legislative, judicial, or 
local office . . . except candidates for president and vice-president of the United States.”  
Minn. Stat. § 211B.01 subdiv. 3.  And “[t]he definitions in chapter 200 and this section 
apply to this chapter.”  Minn. Stat. § 211B.15 is in the same chapter.  Minn. Stat. § 211B.01 
subdiv. 1.  If the definition of candidate in § 211B.01 subdivision 3 applies, § 211B.15 

prohibits foreign-influenced corporations from making contributions and expenditures to 
promote or defeat federal candidates.  And because § 211B.15 regulates contributions and 
expenditures in federal elections, the Chamber reasons, the statute is expressly preempted. 
But the Chamber fails to explain why § 211B.01 subdivision 3’s definition of 
candidate controls instead of § 10A.01 subdivision 10’s.  In H.F. No. 3, the Minnesota 

Legislature amended § 215B.15 to expressly incorporate § 10A.01’s definitions.  See 2023 
Minnesota Laws Chapter 34, art. 3, sec. 3–6.  And § 215B.15 subdivision 4a relies on 
multiple definitions from § 10A.01, including political committee, Minn. Stat. § 10A.01 
subdiv. 27, political fund, id. subdiv. 28, political party unit, id. subdiv. 30, ballot question, 
id. subdiv. 7, contribution, id. subdiv. 11, and expenditure, id. subdiv. 9.  None of those 
terms are defined by § 211B.01 or § 211B.15 subdivision 1.  It is not plausible that the 
Minnesota Legislature incorporated all of those terms expressly limited to state elections 

and state-election entities, see, e.g., Minn. Stat. § 10A.01 subdiv. 30 (defining a political 
party unit as “the state committee, the party organization within a house of the legislature, 
or any other party organization designated by the chair of the political party in an annual 
certification of party units provided to the board”), but intended “candidate” to be defined 
by Minn. Stat. § 211B.01.  Because the FECA only expressly preempts state laws with 

respect to elections of federal office, and the prohibitions in § 211B.15 subdivisions 4a–b 
are limited to state offices, the provisions are not expressly preempted by the FECA.2 
                           b                                         
State laws “are preempted when they conflict with federal law.”  Keller, 

.  Conflict preemption includes where “compliance with both federal and state 

regulations is a physical impossibility,” Arizona, 

 (quoting Florida Lime & 
Avocado Growers, Inc. v. Paul, 

, 142–43 (1963)), and when a state law “stands 
as an obstacle to the accomplishment and execution of the full purposes and objectives of 
Congress,”  

  (quoting  Hines,  312  U.S.  at  67).    Because  it  is  not  impossible  for 
corporations to comply with § 211B.15 subdivisions 4a–b and the FECA, only the latter 

type of conflict preemption is at issue here.  “What is a sufficient obstacle is a matter of 


2      If the Chamber were correct, the remedy would be to enjoin the application of 
§ 211B.15’s challenged provisions to federal elections, not to state and local elections.  See, 
e.g., Republican Party of N.M. v. King, 

, 1215–16 (D.N.M. 2012). 
judgment, to be informed by examining the federal statute as a whole and identifying its 
purpose and intended effects[.]”  Crosby v. Nat’l Foreign Trade Council, 

 (2000).  When Congress legislates in a field “which the States have traditionally 

occupied . . . we start with the assumption that the historic police powers of the States were 
not to be superseded by the Federal Act unless that was the clear and manifest purpose of 
Congress.”  Rice v. Santa Fe Elevator Corp., 

 (1947); Altria Grp., Inc. 
v. Good, 

 (2008).                                          
The parties dispute the application of this presumption.  An amicus argues that state 

elections are a field traditionally occupied by the states.  See ECF No. 98 at 10.  The 
Chamber replies that the “federal interest in this topic is dominant,” ECF No. 100 at 17, 
because the FECA regulates foreign nationals, and “any policy toward aliens is vitally and 
intricately interwoven with contemporaneous [federal] policies in regard to the conduct of 
foreign relations, the war power, and the maintenance of a republican form of government.”  

ECF No. 100 at 20 (quoting Harisiades v. Shaughnessy, 

, 588–89 (1952)).  
The Chamber further emphasizes that such regulations implicate the federal government’s 
national security interest.  ECF No. 100 at 17–18.                        
But the Chamber discounts Bluman’s rationale—the court in Bluman did not ground 
its decision in the federal government’s national security or foreign relation interests.  

Instead,  Bluman  reasoned  that  “[t]he  government may  exclude  foreign  citizens  from 
activities ‘intimately related to the process of democratic self-government.’”  Bluman, 

 (quoting Bernal v. Fainter, 

 (1984)).  And many of the 
cases Bluman cited for this proposition involved states (not the federal government) 
excluding foreign nationals.  Gregory v. Ashcroft, 

 (1991) (Missouri); Bernal, 

 (Texas); Foley v. Connelie, 

 (1978) (New York).  Bluman 
explained  that  “a  State’s  historical  power  to  exclude  aliens  from  participation  in  its 

democratic political institutions [is] part of the sovereign’s obligation to preserve the basic 
conception of a political community.”  Bluman, 

 (quoting Foley, 435 
U.S. at 295–96).  Because state elections are a traditional area of state regulation, and 
states’ historical authority to exclude aliens from participating in their democratic political 
institutions includes prohibiting foreign nationals from spending money in their elections, 

it seems fair to apply the presumption against preemption here.           
Moreover, the FECA includes an express preemption clause.  When Congress 
includes an express preemption clause in a statute, and a state statute is outside the scope 
of that express clause, there is a presumption against implied preemption.  Cipollone v. 
Liggett Grp., Inc., 

 (1992); see also WinRed, Inc. v. Ellison, 

, 

944 (8th Cir. 2023).  Here, Congress expressly preempted state laws only “with respect to 
election to Federal office.”  See  

 (emphasis added).  The FEC’s 
rulemaking confirms this.  See 

(b) (describing three areas where federal 
law supersedes state law concerning federal candidates).  The FEC’s regulation states that 
federal  law  supersedes  state  law  concerning  the  “[l]imitation  on  contributions  and 

expenditures  regarding  Federal  candidates  and  political  committees.”    

(b)(3).  If Congress or the FEC wanted to prohibit states from regulating foreign 
nationals’ (or corporations’) political contributions and expenditures in state elections, they 
could have expressly done so.  Neither did.                               
The Chamber does not overcome these presumptions.  The Chamber broadly argues 
the statute “conflict[s] with Congress’s intended national uniform scheme of regulation to 
protect all elections,” ECF No. 100 at 17, and “the FEC’s choices to narrowly regulate state 

and local elections strongly implies their joint intent to create a uniform national standard, 
which the statute would undermine if not enjoined,” ECF No. 100 at 19.  The Chamber 
seems to be referring to cases such as Arizona v. United States, where the Court found that 
state law would “interfere with the careful balance struck by Congress with respect to 
unauthorized employment of aliens.”  567 U.S. at 406.  But Congress’s prohibition on 

foreign nationals from making contributions and independent expenditures is a single 
statutory section occupying less than a single page.  See 

.  The Chamber 
cites no analogous case where a court has found such a provision to be a “comprehensive 
federal scheme intentionally leav[ing] a portion of the regulated field without controls.”  
Puerto Rico Dep’t of Consumer Affs. v. Isla Petroleum Corp., 

 (1988).  

In Arizona, for example, the Supreme Court found the Immigration Reform and Control 
Act was “a comprehensive framework for ‘combating the employment of illegal aliens.’”  
567 U.S. at 404 (citing Hoffman Plastic Compounds, Inc. v. NLRB, 

 
(2002)).  

 is not comparable.  Looking past volume, Congress has not 
regulated, for example, foreign contributions or expenditures on local ballot initiatives, and 

it is not clear Congress intentionally left this door open as part of some comprehensive 
framework.  See Fed. Election Comm’n, Stmt. of Reasons of Chair Broussard, at *3 
(Nov. 2, 2021), https://www.fec.gov/files/legal/murs/7523/7523_28.pdf.  Congress does 
not preempt state law every time it considers regulating a topic but ultimately declines to 
do so.  See Puerto Rico, 

.  And when Congress regulates, it just as often 
creates a floor rather than a uniform rule preempting stricter state laws.  See Atherton v. 
F.D.I.C., 

 (1997).  Nor is there any indication the FEC has taken such a 

broad view of the FECA’s preemptive reach.  See ECF No. 98 at 8 n.4 (citing Fed. Election 
Comm’n,  Suppl.  Stmt.  of  Reasons  of  Comm’r  Goodman,  at  *2  (May  1,  2015), 
https://www.fec.gov/files/legal/murs/6678/15044372967.pdf).  Simply put, the Chamber 
has not met its burden: to demonstrate the FECA’s prohibition on foreign contributions and 
expenditures is the type of comprehensive regulatory scheme that preempts Minnesota’s 

stricter regulations in its own elections.                                
                           c                                         
“Field preemption reflects a congressional decision to foreclose any state regulation 
in the area, even if it is parallel to federal standards.”  Arizona, 

.  It occurs 
when the Government has regulated a field “so comprehensively that it has left no room 

for  supplementary  state  legislation.”    Murphy  v.  Nat’l  Collegiate  Athletic  Ass’n, 
584 U.S. ---, 

 (2018) (quoting R.J. Reynolds Tobacco Co. v. Durham 
Cnty., 

 (1986)).  But there is little difference between the Court’s 
conflict-preemption  jurisprudence,  when  state  laws  are  obstacles  to  comprehensive 
regulatory schemes, and field preemption.  See Arizona, 567 U.S. at 400–08.  The same 

presumptions  against  implied  preemption  apply.    And  the  Chamber  fails  to  clearly 
distinguish between the arguments in its briefing.  See ECF No. 100 at 17–20.  Therefore, 
the Chamber’s field preemption argument will likely fail on the merits for the same reason 
its conflict preemption argument will likely fail.                        
                           B                                         
The second Dataphase factor is irreparable harm.  “The loss of First Amendment 
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  

Elrod  v.  Burns,  

  (1976)  (plurality  opinion);  see  also  Johnson  v. 
Minneapolis Park & Recreation Bd., 

, 1101–02 (8th Cir. 2013) (same).  The 
Chamber contends many of their members “have refrained and will each refrain from 
making contributions that may be used for independent expenditures or ballot questions, 
due to the statute’s prohibitions.”  ECF No. 60 at 22.  The Chamber offers affidavits from 

CEOs of its member-corporations to support this.  See ECF Nos. 62–64.     
The Board counters that “Plaintiff’s need for immediate relief is undercut by its own 
delay in bringing a motion for injunctive relief.”  ECF No. 88 at 33.  This is a fair concern 
in the abstract.  “[A] party requesting a preliminary injunction must generally show 
reasonable diligence.”  Benisek v. Lamone, 

 (2018).  “[T]he failure 

to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for 
preliminary relief and suggests that there is, in fact, no irreparable injury.”  Aviva Sports, 
Inc. v. Fingerhut Direct Mktg., Inc., No. 09-cv-1091 (JNE/JSM), 

, at *1 
(D. Minn. May 25, 2010) (quoting Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 

, 144 (2d Cir. 2005)); see also Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 

 (8th Cir. 1999).                                        
But these cases are not comparable to what we have here.  In Hubbard Feeds, the 
plaintiff became “aware of . . . infringing conduct” in 1988, but “delay[ed] nine years in 
asserting its rights.”  Hubbard Feeds, 

.  In Aviva Sports, the plaintiff 
knew  about  the  defendant’s  “allegedly  false  advertisements  for  several  years  before 
bringing [the] action,” and even after bringing the action waited more than nine months to 
file a motion for a preliminary injunction.  Aviva Sports, 

, at *1.  And in 

Benisek, “appellants did not move for a preliminary injunction in the District Court until 
six years, and three general elections, after the 2011 map was adopted, and over three years 
after the plaintiffs’ first complaint was filed.”  Benisek, 138 S.Ct. at 1944. 
The Chamber, by comparison, moved for a preliminary injunction roughly five 
months after the statute was passed in May 2023.3  Five months is materially different than 

several years, six years, and nine years.  Moreover, in each of those prior cases the alleged 
irreparable harm was ongoing for several years when a preliminary injunction was sought.  
By contrast, the Chamber seeks an injunction before the statute becomes effective on 
January 1, 2024.  Despite claiming that speech is already being chilled, the principal harm 
at issue is the prohibition of speech, backed by criminal and civil sanctions, that will come 

into effect on January 1, 2024.  In other words, the five-month delay here is not dispositive. 
                           C                                         
The remaining two Dataphase factors, the balance of harms and the public interest, 
don’t change anything.  “[T]he determination of where the public interest lies also is 


3    Governor Tim Walz signed the bill, H.F. No. 3, into law on May 5, 2023.  2023 
Minnesota  Laws  Chapter  34,  art.  3,  sec.  3–6.    The  Chamber  filed  its  motion  for  a 
preliminary injunction on October 24, 2023, ECF No. 58, but the Board asserts “[t]he 
Chamber did not bring its motion for preliminary injunction until September 28, 2023,” 
ECF No. 88 at 33.  September 28, 2023, appears to be when the Chamber first met and 
conferred with Defendants.  See ECF No. 68 (“Plaintiff then waited another three months, 
until September 28, 2023, to inform the parties that it planned to file a preliminary 
injunction motion the following week.”).                                  
dependent on the determination of the likelihood of success on the merits of the First 
Amendment challenge because it is always in the public interest to protect constitutional 
rights.”  Phelps-Roper v. Nixon, 

 (8th Cir. 2007), modified on reh’g, 

  (8th  Cir.  2008).    “The  balance  of  equities,  too,  generally  favors  the 
constitutionally-protected freedom of expression.”  

  Where, as here, the Chamber is 
likely to prevail on its First Amendment claim, the remaining Dataphase factors strongly 
support a preliminary injunction.                                         

Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Plaintiff  Minnesota  Chamber  of  Commerce’s  Motion  for  Preliminary 
Injunction [ECF No. 58] is GRANTED;                                       
2.   Defendant Choi, in his official capacity, is enjoined from enforcing the 

“foreign influenced corporation” provisions in amended Minn. Stat. § 211B.15, those 
provisions being subdivisions 1(b), 1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 
7b(2), and any related rules and regulations;                             
3.   The  Board,  in  their  official  capacities,  are  enjoined  from  enforcing  the 
“foreign influenced corporation” provisions in amended Minn. Stat. § 211B.15, those 

provisions being subdivisions 1(b), 1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 
7b(2), and any related rules and regulations;                             
4.   Defendants, in their official capacities, are enjoined from pursuing civil or 
criminal  liability  for  any  alleged  violations  of  the  “foreign  influenced  corporation” 
provisions in amended Minn. Stat. § 211B.15, those provisions being subdivisions 1(b), 
1(d), 1(e), 4a, 4b, the reference to “4a” in subdivision 7b(2), and any related rules and 
regulations, that allegedly occur during the term of this preliminary injunction; and 

5.   Plaintiff Minnesota Chamber of Commerce may seek leave to amend its 
Complaint if it believes new developments justify amendment, and any such motions shall 
be filed with the undersigned.                                            
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: December 20, 2023           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court