SANDLER, REIFF & YOUNG, RC. 

September 14, 2009 

Mr. Thomas J. Nurthen 

Audit Division 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

Dear Mr. Nurthen: 

This letter will serve as the response of the Tennessee Democratic Party ("TDP") to the Draft 

Final Audit Report ("Audit Report") of the Federal Election Commission's Audit Division ("the 

Audit Division") for the period covering the TDP's financial activities for 2005 and 2006. 

Although the Audit Report's recommendations will likely not lead to any resulting 

enforcement actions against the TDP, the committee believes that certain positions taken by the 

Audit Division in the Audit Report are incorrect as a matter of both fact and law and would like to 

address these issues at a brief hearing in accordance with the Commission's procedures regarding 

Draft Final Audit reports. 

At this hearing, the TNDP would like to address: 

1) the Audit Report's conclusion that the polls reviewed by the Audit Division qualify as a 

Federal Election Activity as defined by the Commission's regulations; and 

2) the Audit Report's conclusion that generic rallies were allocable as coordinated 

expenditures on behalf of Harold Ford Jr. and whether these rallies were Federal Election 

Activity as defined by the Commission's regulations. 

Specifically, the TNDP disputes the conclusion that the polls should have been paid solely 

with federal funds and that the polls were ordinary, allocable, administrative costs that should be 

disclosed on Schedule H4. After a review of the Draft Final Audit Report, it is unclear what 

provision the Audit Division is relying upon to determine that the poll is Federal Election Activity. 

The draft report refers to the fact that the polls were undertaken **within the FEA time frame." 

300MSTREET, S.E., SUFFE 1102 • WASHINGTON, DC 20003 • TEL: (202)479-1111 -FAX : (202)479-1115 
Mr. Thomas J. Nurthen 

September 14,2009 

Page Two 

However, the time frame is only relevant with respect to FEA that is for voter registration, 

voter identification, get-out-the-vote or generic activity. The Draft Report does not specify which 

provision covers the polling activity. The TNDP also believes that the poll was done as a 

legitimate polling activity and did was not undertaken for the purpose of promoting, supporting, 

attacking or opposing any federal candidate. It is common for a legitimate poll to test messaging 

through the use of statements that may attack or oppose a candidate. These polls are designed to 

obtain information regarding the party's candidates and opposing candidates and a political 

committee should not be forced to federalize a poll that test both federal and non-federal messages. 

To be sure, the coinmittee did not place any information regarding the poll back to its voter file as 

contemplated by 11 C.F.R. § 100.25(a)(4). The Commission's regulations and the BCRA were 

designed to limit the use of non-federal fimds for communications that were targeted to infiuence 

voters. A poll in which only 1,000 persons were contacted would clearly fall short of that goal. 

Therefore, it is proper to disclose the polls on Schedule H4 and allocate the costs accordingly on 

the committee's administrative split.^ 

With respect to the invoices regarding generic rallies, the TNDP stands by its assertion that 

these invoices were mistakenly addressed to the Harold Ford campaign and were, in fact, for 

generic rallies sponsored by the TNDP. This appears to be the sole basis for the Audit Division's 

conclusion. This conclusion is based solely upon the mistaken invoices and ignores the swom 

affidavit provided by the TNDP's campaign director. This affidavit was provided because the 

TNDP believed that it was important these activities be properly disclosed and represented in the 

Final Audit Report. Based upon the Audit Division's representation that the TNDP does not have 

any exposure with regard to the overuse of Coordinated Expenditure authority or non-federal funds, 

the TNDP has no incentive to misrepresent these facts, and the Commission should accept, as tme, 

the representations made in Mr. Button's affidavit.^ 

' The Office of General Counsel appears to agree that the poll did not constitute voter identification activity. See 

Memorandum to John D. Gibson of May 22,2009, p. 4-6. For the reasons stated above, we disagree with OGC*s 

conclusion that the polls were a federal election activity in accordance with 2 U.S.C. § 431(20)(A)(iii). 

^ Recently, three Commissioners determined that a public opinion poll did not require a disclaimer. In a Statement of 

Reasons, the Commissioners explained the important distinctions between a "phone bank" and a public opinion poll. 

The same reasoning is applicable in this instance. See Statement of Reasons of Vice Chairman Matthew S. Peterson 

and Commissioners Caroline C. Hunter and Donald F. McGahn, MUR S83S. 

^ Although the committee disclosed payments for these rallies on Schedule H6, die Commission may also wish to 

address whether a partybuilding rally is a "public communication" as defined in 11 C.F.R. § 100.26. This is a 

significant question since it will determine whether the non-federal portion of a generic rally that does not reference a 

federal candidate can be paid for with Levin funds (when diere is no mention of any federal candidates) or whether a 

rally would merely be considered a "voter drive" activity as defined by 11 C.F.R. § 106.7(c)(5). In addition, the 

Conmiission should 2999 whether a rally should be considered a "coordinated communication" as defined by 11 C.F.R. 

§ 109.21. Based upon the analysis of several Commissioners in MUR 5564, it appears that a rally may not be a public 

communication. See e.g. Statement of Reasons of Commissioner Chairman Robert D. Lenhard, MUR 5564, Statement 

of Reasons of Chairman Michael E. Toner, and Commissioners David M. Mason and Hans A. von Spakovsky, MUR 

5604. 
Mr. Thomas J. Nurthen 

September 14, 2009 

Page Three 

If you require any further information, or have any other questions, please call me at (202) 

479-1111. 

Sincerely, 

Neil Reiff 

Counsel to the Tennessee Democratic Party