Audio for this story from Weekend Edition Saturday will be available at approx. 12:00 p.m. ET
September 8, 2012
Some of the groups running ads this election season haven't been required to disclose their donors. But as Election Day draws nearer, some of the rules are changing, making campaign ads a riskier business for those who want to keep donors a secret.
Republican Mitt Romney's campaign put up 15 new ads Friday in eight battleground states. In those eight states, the Romney and Obama teams have spent $381 million since May 1, according to an NPR analysis of data compiled by the 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. One group is Americans for Prosperity, which is backed by billionaires David and Charles Koch. The other, cofounded by strategist Karl Rove, is Crossroads GPS.
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 fewer 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.
TV and radio electioneering ads talk about candidates, but don't expressly tell you how to vote. Crossroads GPS, for example, has an electioneering ad that says, "Tell Obama, for real job growth, cut the debt ..."
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," which don't have a disclosure requirement. But these groups aren't supposed to do politics. So if a social welfare group does too much expresses advocacy, it can get into trouble with the IRS.
So they have to talk to their lawyers — and roll the dice.
"There are tens — if not hundreds — of millions of dollars in the gamble," says Greg Colvin, a San Francisco lawyer who specializes in the law for tax-exempt organizations. "They're gonna cross their fingers and hope that they spent less than 51 percent of their money on ads that the IRS will not consider to be political."
Crossroads GPS and Americans for Prosperity didn't respond Friday to queries on how they plan to proceed.