OLDAKER. BELAIR & WITTIE, LLP 

ATTORNEYS A T LA W 

81 8 CONNECTICU T AVENUE , N.W . 

SUITE 1100 

WASHINGTON . D.C. 20006 

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FACSIMILE (202) 464^66 9 

July 20, 2009 

Federal Election Commission 

Audit Division 

Attn: Ms. Paula Nurthen and Mr. Alex Boniewicz 

999 E Street, NW 

Washington, D.C. 20463 

Re; Preliminary Report of the Audit Division 

on Biden for President, Inc. 

Dear Ms. Nurthen and Mr. Boniewicz: 

We are counsel to Biden for President, Inc. (the "Committee"). Pursuant to 11 

CF.R. § 9038.1(c)(2), the following information and materials are being provided and 

constitute a response in connection with the above-captioned matter. In sum, this 

response focuses on two findings contained in the Preliminary Audit Report ("PAR"): (i) 

that the Committee failed to provide timely "presumptive designation" notices to a 

material number of individuals (see PAR Finding 2); and (ii) that the Committee has an 

unresolved balance of $129,300 in stale-dated checks (see PAR Finding 4). 

1. Failure to Provide Presumptive Designation Notices 

The audit staff identified $1,092,899 in contributions from individuals that were 

presumptively designated for the general election, but for which the Committee was 

unable to produce copies of conesponding notification letters sent pursuant to 11 C.F.R. 

§110.1(b)(5)(ii)(B). The audit staff concluded that these contributions were eventually 

properly resolved, because the Committee obtained re-designations for them to the 

candidate's Senate campaign committee ("Citizens for Biden"), but determined that, 

because the re-designation letters were sent more than 60 days after the contributions 

were made, they were not an adequate substitute for the presumptive notices. The audit 

staff therefore determined that the Committee's re-designations were untimely. See PAR, 

p.l2. 

When this issue was raised by audit staff during the fieldwork phase of the audit, 

the Committee expressed confidence that the presumptive notices were sent and 

explained they had been lost inadvertently when the Committee changed locations in the 

spring of 2008. The Committee staff member responsible for managing the sending and 

retention of all Committee "cure letters" recalled specifically that the notices were sent, 
but her critical medical condition at the time made a formal declaration impractical (she 

died on September 20, 2008). Moreover, the Committee computer containing the 

template used to send the notices was unavailable, because it had been "wiped clean" and 

sold pursuant to Committee wind-down efforts, which included the sale of Committee 

assets. 

To substantiate its contention that the presumptive notices were sent, the 

Committee provided a range of circumstantial evidence, which is set forth on page 13 of 

the PAR. This evidence included copies of the Committee's entire library of cure letter 

templates, which included a presumptive designation notice, and a contribution 

compliance chart used by Committee staff to review and cure problematic contributions. 

The chart specifically identified the need for Committee staff to send presumptive 

designation notices to contributors who contributed in excess of $2,300. Indeed, the 

Committee noted in a written submission, dated September 26, 2008, that documentation 

demonstrating that the Committee had regularly and comprehensively sent other cure 

letters supported its claim that the presumptive notices were sent, because it was unlikely 

that the Committee would have sent this anay of letters and omitted the presumptive 

notice, which requires no action by the contributor unless he or she objects to the 

designation. Select Committee staff also expressed to audit staff that the individual 

responsible for managing the sending and retention of the Committee's cure letters was 

renown for being conscientious and meticulous, and it was inconceivable to them that she 

would have overlooked such an important compliance matter. Finally, Committee stafT 

contacted a number of contributors, who recalled receiving the presumptive notice but 

had not retained it because no action was required on their part. 

The PAR notes the Committee's inability to produce copies of presumptive 

notices from contributors and finds the Committee's circumstantial evidence insufficient 

to substantiate that the presumptive designation notices were sent. In response, the 

Committee submits herewith several swom declarations from individuals to support that 

the presumptive notices were in fact sent. 

First, the Committee provides declarations from a number of contributors who 

recall receiving a presumptive designation notice from the Committee. None of these 

individuals retained a copy of the presumptive notice, because, unlike other "cure" 

letters, no action is required by the contributor unless he or she objects to the designation. 

Exhibit A. 

In addition, the Committee is providing a declaration executed by a Committee 

staff member who worked directiy for the now deceased staff member responsible for 

managing the Committee's sending and retention of cure letters. Exhibit B. His 

declaration unequivocally confirms that he regulariy sent presumptive designation letters 

to contributors who made primary election contributions in excess of $2,300. The 

declaration also indicates that the presumptive notices were sent regularly at the direction 

of the now deceased staff member. 
In view of these declarations, which buttress the Committee's earlier 

circumstantial evidence, we ask that the Final Audit Report accept the Committee's 

contention that presumptive designation letters were sent. 

2. Stale-Dated Checks 

The PAR indicates that the Committee has an unresolved balance of $129,300 in 

stale-dated checks. This figure is overstated by $48,400.00.' In particular, several 

general election contribution refund checks treated as stale-dated checks in the PAR have 

been resolved, either by issuance of a replacement check (which has been negotiated), or 

by the contributor's authorization to transfer the funds to Citizens for Biden and/or Unite 

Our States. A table listing and explaining the resolution of each of these checks is 

attached, along with the necessary supporting documentation. See Exhibit C. 

* * * 

Should you have any questions or require additional information or clarifications 

regarding this response, please do not hesitate to contact us. 

Sincer^, 

Willia|^<l. Far' 

Phu D. Huynh 

(Attachments) 

' This reduced figure also accounts for a stale-dated check listed in the spreadsheet prepared by the audit 

staff for $2,700 that in fact should have been issued for only $2,300. See Check No. 1152.