SCOTT SIMON, HOST:
Yesterday marked 60 days until Election Day, and that has special significance in election law. And it could affect the way some big political advertisers spend their money from here on out. NPR's Peter Overby reports.
PETER OVERBY, BYLINE: Republican Mitt Romney's campaign put up 15 new ads yesterday in 8 battleground states. In those eight states, the Romney and Obama teams have spent $381 million since May 1st. That's according to an NPR analysis of data compiled by National Journal.
Republicans have outspent Democrats in five of the eight states and overall, they lead by $25 million. Two pro-Republican groups account for two-thirds of all the GOP spending, and more than the Romney campaign itself.
(SOUNDBITE OF POLITICAL AD)
UNIDENTIFIED WOMAN #1: We must replace President Obama. Americans For Prosperity is responsible for the content of this advertising.
OVERBY: That's from one of the groups, Americans For Prosperity, which is backed by billionaires David and Charles Koch. The other group, co-founded by strategist Karl Rove, is Crossroads GPS.
(SOUNDBITE OF POLITICAL AD)
UNIDENTIFIED WOMAN #2: Tell Obama, for real job growth cut the debt. Support the new majority agenda...
OVERBY: Americans For Prosperity and Crossroads GPS are technically social welfare organizations, so they aren't required to disclose their donors. But now that the election is less than 60 days away, maintaining secrecy is a little harder.
There's a legal window that closes 60 days before the election. Once it's shut, groups are required to disclose the money behind so-called electioneering ads. Those are TV and radio ads that talk about candidates, but don't expressly tell you how to vote. That Tell Obama spot from Crossroads GPS is one example.
The window for the presidential campaigns actually closed 30 days ago, before the conventions. But now the window is closed for Senate and House races too. A social welfare group can just switch to express advocacy like that Americans For Prosperity ad, saying we must replace President Obama.
But, if a social welfare group does too much express advocacy, it can get into trouble with the IRS. That's because these groups aren't supposed to do politics. So they have to talk to their lawyers and roll the dice.
GREG COLVIN: There are tens, if not hundreds of millions of dollars, in the gamble.
OVERBY: Greg Colvin is a San Francisco lawyer who specializes in the law for tax-exempt organizations.
COLVIN: They're going to cross their fingers and hope that they spent more than 51 percent of their money on ads that the IRS will not consider political.
OVERBY: Crossroads GPS and Americans For Prosperity didn't respond yesterday to queries on how they plan to proceed.
Peter Overby, NPR News, Washington.
NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.