Commentary: Maryland’s take-no-prisoners newspaper lobby

By J.H. Snider

The writer is the president of iSolon.org and author of Speak Softly and Carry A Big Stick: How Local TV Broadcasters Exert Political Power. He is also a former fellow at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy.

There is a maxim that most politicians have learned by the time they are elected to Maryland’s General Assembly: “Never argue with a man who buys ink by the barrel.” In other words, don’t publicly disagree with your local newspaper’s publisher.

Another maxim publishers intuitively understand when lobbying to preserve their government subsidies: “Speak softly and carry a big stick.” The stick in this case is controlling information about local politicians and their opponents. The speak softly refers to exercising this power below the public radar.

What government subsidies, you might ask? Well, the less you know about them, the happier the publisher — and who else will tell you about them other than the publishers themselves? It’s a classic Catch-22.

A vivid case of divergent interests between publishers and the public is government-mandated legal ads to subsidize local newspapers. The amount of these subsidies, as well as what share is paid by various government and non-government entities, is a carefully guarded trade secret by newspaper companies. Publishers protect these subsidies like a mother bear protects her cubs because they constitute a large share of their profits. Indeed, it may be the best sweetheart deal for any industry in Maryland, as no other government-mandated program for a for-profit industry may grant it more revenue at less cost.

Although this government-mandated ad program exhibits many economic inefficiencies, the key one is that local newspapers no longer efficiently distribute legal ads. Just as classified ads in newspapers have become obsolete because of more efficient ways to reach audiences, so have legal ads — with the crucial difference that they are government-mandated.

This government giveaway is also unjust, as it often effectively taxes the poorest Marylanders to subsidize mostly large, out-of-state, media companies owned by some of the wealthiest individuals in America. According to the Maryland Register of Wills Association, 22 of Maryland’s 24 counties are served by local newspapers owned by companies with out-of-state headquarters.

When local publishers depend on these legal ads for their profits, they cannot hold powerful politicians accountable because they are beholden to them. According to a former reporter at the Annapolis Capital, the late Maryland House Speaker Mike Busch had a symbiotic relationship with the newspaper. Of course, if Speaker Busch ever cut off the legal ad profit spigot for the Capital, half the Capital’s market value might disappear overnight. According to the Maryland Register of Wills Association, its Anne Arundel County chapter, which places its legal ads in the Capital, spent $252,188 during fiscal year 2023 on such ads, which is only a small fraction of the legal ad revenue the Capital receives each year from all government mandated legal ads.

Every time a bill comes up in the Maryland General Assembly to curtail the legal ad newspaper subsidy in some small way — even if the burden for paying for them is disproportionately placed on the least well-off and organized Marylanders — publishers complain as if the world would come to an end. They fear that any successful curtailment of legal ads would start a slippery slope to eliminate them all, as the economic rationale for this type of public notice has long since become as obsolete as the horse and buggy.

The latest bill to attempt to rein in obsolete legal ads, House Bill 1258, is so compelling on its merits that it passed the General Assembly unanimously. Now the local newspaper lobby is engaging in a full-court press to get Gov. Wes Moore to veto it. This government-mandated fee on estate beneficiaries to fund local newspapers cost Marylanders $1,661,265 in fiscal 2023.

When someone dies in Maryland, their estate’s beneficiaries must pay to run legal ads weekly for three weeks alerting potential beneficiaries and creditors of the death. Although the government mandates these ads, there is no government budget for them because the estate pays for them.

For example, in Frederick County, the beneficiaries of a regular estate must pay $343 to place such ads in the Frederick News-Post. Since publishers demand that the fee be paid upfront — sometimes years before an estate is distributed to its beneficiaries — it is especially hard on those lacking savings.

No independent entity audits how well this notice system works to achieve its official purpose. But even without such a study, it’s hard to imagine a less efficient and effective information system.

The government’s current online system for estate information is a good start on a better system. It is open to search engines such as Google; allows creditors to set up alerts to track potentially deceased debtors; and allows beneficiaries to search for and set up alerts for the relevant information on their deceased relatives. An even better system could be implemented, but the current newspaper legal ad system is not even in the same ballpark given its obscene fees for an outdated product.

Maryland’s Press Association placed an opinion article attacking HB 1258 in local newspapers throughout Maryland, including the Baltimore Sun, Capital, Cumberland Times-News, Daily Record, Dorchester Banner, Enquirer-Gazette, Frederick News-Post, Garrett County Republican, and the Herald Mail. This is remarkable for three reasons.

First, most of these publications expect opinion submissions to be exclusive to themselves rather than shared with competitors. Second, some require non-syndicated opinion authors to live within their territories. Third, the amount of time it takes an editor to publish an opinion article is highly unpredictable so the odds of an uncoordinated opinion submission being published in nine newspapers within several days of each other and at the best possible time to have a political impact would seem to be improbable unless there was an organized effort among Maryland publishers, who pay for the MDDC Press Association to serve as their lobbying arm.

The article was published in local newspapers as if it were just another interest group advocacy article. But insiders such as local politicians will interpret it as a dog whistle for something else: a coordinated effort by powerful local newspaper publishers to signal they strongly back their trade association’s aggressive lobbying effort to kill HB 1258 as well as a warning to politicians that, if necessary, publishers will use their newspapers in a one-sided way that violates journalistic objectivity norms.

When publishers use their newspapers to lobby or favor political candidates, they exempt themselves from laws requiring disclosure of lobbying and campaign finance activities.

In 2019, there was another bill that unanimously passed the House of Delegates seeking to rein in a different category of legal ads: those that locally elected state’s attorneys are forced to run regarding property forfeitures. The MDDC Press Association orchestrated a similar full-court effort to kill the bill, which it was able to do when it got the bill’s sponsor to withdraw it.

A week before the bill was killed, I submitted a letter to the Capital, taking issue with the newspaper’s editorial denouncing then-Del. Michael Malone’s bill seeking to modernize public forfeiture notices, calling the editorial “shamefully self-serving and misleading.” I pointed out that the government mandate to pay the Capital $1,800 for each forfeiture notice was “anachronistic and indefensible” and noted that the Anne Arundel County government alone pays the Capital more than $500,000/year for government mandated public notices.

I called on the Capital to “publicly disclose 1) how much both governments and private industry pay it under government mandated notice requirements, and 2) how much the Baltimore Sun Media Group pays the MDDC Press Association lobbyist and who that lobbyist is currently privately meeting with in the Senate. It should acknowledge and fairly report the arguments of those who argue this form of notice is archaic and undemocratic.”

Weeks after I submitted it, I asked the Capital’s editor why he hadn’t published it. He replied that it had been lost in his letters queue.

On April 23, 2024, the day the MDDC Press Association article ran in the Capital, I submitted another letter, arguing that the op-ed attacking HB 1258 “was highly misleading.”

As of May 3, the Capital hadn’t published it. Given my experience with the Capital in 2019, I also submitted the article to the Baltimore Sun (which also serves Anne Arundel County) and Frederick News-Post. As of May 3, neither newspaper had run it.

According to Byron Macfarlane, president of the Maryland Register of Wills Association, at least three local registers of wills submitted letters to local newspapers critical of the MDDC Press Association’s article. To date, none has been published.

On April 22, the same day the Baltimore Sun ran the article, Macfarlane published on X, formerly Twitter: “This letter is filled with misinformation. HB1258, sponsored by Del. Elizabeth Embry (D-Baltimore City), will save grieving families from an unjustifiable expense. Supporters of this measure — which passed the legislature *unanimously* — look forward to correcting the record and submitting a response to the Sun.”

On April 24, he followed up with: “Given that the corporate lobbyist opposing this bill has characterized a veto as ‘preserving local journalism,’ it would be patently hypocritical not to publish other perspectives. I hope and trust in a fair airing of views, especially since this column was so flatly dishonest.”

Since local newspapers provide a valuable function, it’s unfortunate that the internet revolution caused them to lose much of their print and online classified ad revenue. But subsidizing newspapers in the secretive, unaccountable ways government-mandated legal ads have done, often on the backs of the poorest and least well-organized Marylanders, is the wrong remedy.

If the General Assembly wants to subsidize this highly monopolistic industry and its mostly out-of-state owners, it would cause less harm if it did so transparently and accountably rather than through this corrupt method.

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