When Brian Frosh was sworn in as Maryland attorney general in 2015, the Democrat probably did not expect to spend his tenure fighting the host of The Apprentice. But starting in 2017, Frosh and a slew of other Democratic attorneys general took Donald Trump’s administration to court on everything from the Muslim travel ban to rolling back environmental regulations.
Frosh has declined to run for a third term this year, and Democratic candidates in this very blue state are eager to succeed him. One of them is Katie Curran O’Malley, who has had a front-row view of Maryland politics. Her father, J. Joseph Curran Jr., served as Maryland’s lieutenant governor and as the state’s longest-serving attorney general. Her husband, Martin O’Malley, served as governor from 2007 to 2015.
To become AG, O’Malley, who worked as a district judge for 20 years, will have to beat Anthony Brown, who was her husband’s lieutenant governor before being elected to Congress in 2016, in the June 22 primary. If she wins, she’ll join a bipartisan group of attorneys general taking on corporate power.
Last month, O’Malley unveiled her economic justice policy agenda. I spoke with her on April 7 about using the attorney general’s office to take on corporate concentration.
This conversation has been edited and shortened for clarity.
GB: When we talk about antitrust, I think most people look to Congress, to the Federal Trade Commission, to the Justice Department. How can state attorneys general lead the fight against monopolization?
KO: Historically, that’s what the states have done since Standard Oil. Now, we’re seeing more and more AGs are banding together when it comes to going after Amazon, Facebook, and Google.
My dad, who was attorney general for 20 years, joined the tobacco lawsuit started by [Mississippi Attorney General] Mike Moore. The more states that got into the actual suit, the more powerful it became. That’s why I think the states are the leaders on this issue.
We’re living in an era of extraordinary corporate power, and people aren’t really taking it that seriously.
GB: There’s been a movement to broaden what’s thought of as the consumer welfare standard and look beyond what affects consumers or prices when assessing if a business practice is anticompetitive. What sort of standard are you looking to apply?
KO: When we’re looking at anticompetitive behavior, it’s not just the pricing and worrying about the effects on consumers. It’s also how it affects workers and if these corporations really care about workers. Amazon is one of the main offenders, but we also have Uber and Lyft and how they’re treating their workers with misclassification. We need more laws to protect not only consumers but also workers who are harmed by these large companies.
GB: We’re seeing a lot of creativity out of states to take on monopolies. Maryland was the first state to introduce a digital ad tax. But we’ve seen state AGs like Dave Yost in Ohio trying to use a “common carrier” law to get Google regulated as a public entity or Karl Racine in D.C. bringing an antitrust case against Amazon for setting price floors for third-party sellers. If you were attorney general, what innovative ideas do you have for trying to curb monopolization?
KO: I’m in support of those AGs and hope to learn from their work. I’m interested in seeing if New York is able to pass the 21st Century Antitrust Act because we here in Maryland would like to pass an abuse of dominance law. That would certainly broaden the tools any AG would have when it comes to antitrust violations.
And also imposing higher criminal penalties. For many of these companies, it’s like, “Yeah, sure, give me the fine, but that’s not gonna change my behavior.”
I will be urging, as the next AG, to broaden the laws we can use and increase our antitrust lawyers. We have a huge consumer protection division, and I’d like to see that we do more on antitrust enforcement.
GB: Most people look at antitrust and think of Big Tech, but there’s alarming consolidation in tons of industries. What industries would you want to take a closer look at in Maryland?
KO: We have issues with agricultural companies, not only for their anticompetitive practices but also for what they’ve done to the environment. I believe in 2021, AG Frosh went after Monsanto and got a big settlement because of the effects of the chemicals on our Chesapeake Bay. Travel companies and airlines also should be looked at. Pharmaceutical companies—we joined in a consumer protection action with other AGs against Purdue Pharma and the Sackler family because of the opioid crisis. We notice big hospital mergers too.
GB: In terms of collaboration, there’s been remarkable bipartisan overlap among state AGs in taking on monopolies, particularly in investigations and lawsuits against Facebook and Google. Why are you the best candidate to engage in those bipartisan efforts?
KO: Throughout my 30 years—being in the state’s attorney’s office for the first 10 and then a judge for 20 years—I have been able to work as a mediator on so many issues. And even as a prosecutor, it’s not all about just putting somebody in jail. It’s about working out solutions and having an attorney general who’s been in courtrooms, worked across the board to come up with settlements as a judge, and mediate cases. I feel as though I’m the best person for that because of the years of experience I’ve had in courtrooms.
GB: A lot of people think of this as a second Gilded Age, with the potential for it to be a second Progressive Era and take on these companies through antitrust work. How do you see the next five to 10 years shaping up in terms of the opportunity for state AGs?
KO: I think it’s a really, really good opportunity because everyone can get behind this. There’s been so much divisiveness in our politics over the past decade. But when it comes to how harmful the effects of the Big Tech companies have been, I think it’s bipartisan.
The voters are on the side of, “Let’s rein it in. This is too much. We need to get control of this now.” I have a feeling that we’re going to see a lot more changes and a lot more laws from the states, and not waiting for the federal government.
