[Congressional Record Volume 160, Number 110 (Tuesday, July 15, 2014)]
[Senate]
[Pages S4473-S4480]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF NORMAN C. BAY TO BE A MEMBER OF THE FEDERAL ENERGY
REGULATORY COMMISSION
______
NOMINATION OF CHERYL A. LAFLEUR TO BE A MEMBER OF THE FEDERAL ENERGY
REGULATORY COMMISSION--Continued
The PRESIDING OFFICER. Under the previous order, the time until 3:15
p.m. will be equally divided and controlled between the two leaders or
their designees. If neither side yields time, both sides will be
equally charged.
The PRESIDING OFFICER. The Senator from Alaska.
Ms. MURKOWSKI. Madam President, are we in a quorum call presently?
The PRESIDING OFFICER. We are not.
Ms. MURKOWSKI. Madam President, I have come to speak about the two
nominees on the executive calendar who are before us this afternoon.
Norman Bay and Cheryl LaFleur are nominated to be commissioners on the
Federal Energy Regulatory Commission, FERC, an increasingly critical,
independent regulatory commission.
As the Senate has considered these nominations, there has been kind
of a weird drama that has played out throughout the entire community
that follows the FERC and, as I understand, the agency itself has been
really very distracted by it. Many are concerned the wrong person is
set to take over as chair of the FERC and that the Commission is at
risk of losing its reputation for objectivity. So for the benefit of
Senators who are not on the energy committee and for members of the
public who have not followed the controversy surrounding these
nominees, let me provide a little bit of perspective this afternoon.
Both nominees have been serving at the FERC. Ms. LaFleur currently
leads the agency as its chair. She has done so with distinction for the
better part of a pretty difficult year. This is a year that has brought
about the polar vortex and challenges to bulk power system reliability.
The other individual, Mr. Bay, is an employee. He is the director of
the agency's Office of Enforcement. He was appointed to that post by
its somewhat controversial former chair, John Wellinghoff of Nevada.
If confirmed, Mr. Bay will become the first FERC employee in the
agency's history who would go directly and immediately to the
commission itself, despite just 5 years of relevant experience.
Furthermore, Mr. Bay will not only be elevated to the post of
commissioner; President Obama has announced that Mr. Bay will be
designated as chairman after his confirmation. That means that Ms.
LaFleur, the FERC's only female commissioner, will be demoted when Mr.
Bay takes over as chair. How soon Ms. LaFleur's demotion will take
place is unclear at this moment.
At the energy committee's business meeting to consider these
nominees, there was a lot of talk about a deal that would allow Ms.
LaFleur to remain as chair for a period of time. It was suggested that
this would give Mr. Bay some much needed on-the-job training as a rank
and file commissioner. So there was a lot of discussion going back and
forth. I was certainly part of that discussion. But talk of a deal and
confirmation of a deal, giving the assurances that certainly this
Senator has sought and yet was not given--talking about a deal and
getting a deal are two different things.
So as we discuss where we are with these nominees, I think it is
important to recognize that even if Ms. LaFleur stays on for a period
of months--whether it is 9 months as some have suggested the deal is or
a different period of time--what we understand is that Ms. LaFleur will
only be allowed to continue in an acting capacity.
So stop and think about this. We have President Obama who has
nominated Ms. LaFleur twice for high office, and despite what I think
has been her distinguished service as a commissioner and as chair of
the FERC, the White House dismisses her as an acting chair. The
administration reportedly has limited her authority even to hire staff.
As some have suggested, this is just a technicality and this is what
happens within the Commission. That is not my understanding at all. I
would view it as an affront. If one is going to be the chair, one
should have the full authorities of the chair.
Even though I disagree with ``Acting'' Chair LaFleur on some key
policy matters, by all accounts, from both Republicans and Democrats,
she is doing a good job. She is fair. She seeks balance. She has the
temperament I think we need for this commission. She has the personal
qualities of leadership we look for. She clearly has the experience.
She has 25 years' worth of experience, in fact. I certainly hope she
will be easily confirmed this afternoon. In fact, I hope Chair
LaFleur's bipartisan support has not hurt her prospects.
Chair Landrieu observed during the committee's consideration of these
nominees that Ms. LaFleur's renomination ``was not a sure thing just a
couple of months ago.'' But we have to ask: Why not? Why wasn't the
renomination of the only woman serving as a FERC commissioner--a
Harvard-educated Obama appointee from Massachusetts--why wasn't she a
sure thing from the get-go? Was it her bipartisan appeal? I would
certainly hope not. Was it her good work as a chair? Again, I hope not.
To me, those are reasons one would choose her to lead the FERC, not
someone else.
One hint came from our majority leader, Senator Reid. He recently
told the Wall Street Journal that Ms. LaFleur ``has done some stuff to
do away with some of Wellinghoff's stuff.'' Now, he didn't really
define what ``stuff'' that was and didn't acknowledge that much of Mr.
Wellinghoff's ``stuff'' was either controversial or incapable of
withstanding legal challenge.
Before we turn to Mr. Bay and his unprecedented promotion from
Director of the Commission's Office of Enforcement in the face of Ms.
LaFleur's demotion, let's discuss the agency the White House proposes
he would lead for just a second. Why does the chairmanship of the FERC
matter so much? Well, the Presiding Officer sits on the energy
committee. She knows. She is watching this. She is looking at the
issues of reliability. In the energy world, FERC regulates ``midstream
everything.'' The chairman is its CEO, and under his or her leadership,
FERC regulates interstate natural gas and oil pipelines, LNG import and
export facilities, the sale of electricity at wholesale, the
transmission of electricity in interstate commerce--basically the
Nation's bulk power system, practically speaking, its high voltage
transmission networks, also the reliability of the bulk power system,
the licensing of hydroelectric facilities and the safety of dams. The
list goes on and on.
One further example is the safeguarding of sensitive information
about our critical energy infrastructure--information that was
compromised by FERC during the tenure of former Chairman Wellinghoff.
That series of events is now subject to an ongoing inquiry by the
inspector general of the Department of Energy, and it is a breach that
Ms. LaFleur has vowed will not happen again.
Given the significance of this agency, let's consider Mr. Bay. So,
beyond the demotion of Ms. LaFleur, and beyond his lack of relevant
experience, what is causing me pause? To begin, there are questions
about the fairness and transparency of the functioning of the FERC
Office of Enforcement during Mr. Bay's tenure there. I haven't resolved
those questions, but I know others are looking at them. Senator
Barrasso has called attention to some of the questions. He has called
for an independent review of the facts in dispute.
Second is the question of the circumstances under which Mr. Bay would
recuse himself from at least 43 different matters, including some high
profile matters that have been pending in the Office of Enforcement on
his watch. But, unfortunately, Mr. Bay apparently doesn't see a need to
recuse himself from these proceedings.
Third are the answers that Mr. Bay provided to questions from those
of us on the energy committee. At best, many were unclear and, at
worst, his responses were simply evasive.
Finally, I keep coming back to the deal--the waiting period that was
needed to attract enough support on the Democratic side to report Mr.
Bay's nomination from committee. So we
[[Page S4474]]
have to ask the question: What are those terms? Will the acting chair
have the opportunity to serve fully and completely as chair? Will it be
clear that Mr. Bay is not a ``shadow chairman'' or a ``chairman-in-
waiting'' during this crucial period? At a minimum, before we make a
choice about who should lead the FERC, the President owes Senators a
clear time line of who will be in charge and what the powers are that
will be given to him or her.
FERC is just too important a commission. It is too important for
appointees to be handled in this way.
So, today, I am going to be supporting the confirmation of Ms.
LaFleur. In fact, I am pleased to support her, even though I don't
always agree with her policy views. But I do regret I will not give my
support to Mr. Bay, and I urge other Senators to withhold their support
as well.
With that, I would yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Protect Women's Health From Corporate Interference Act
Ms. MIKULSKI. Madam President, I wish to take this opportunity to
speak in support of the Murray legislation to protect women's health
from corporate interference. Because of an obligation to speak at a
memorial service tomorrow, I will not be able to speak tomorrow
morning. I feel so strongly about this issue that I would like to say a
few words today.
This legislation ensures that the personal opinion of an employer
doesn't trump the medical opinion of a doctor. I sure wish this
legislation were not necessary, but, unfortunately, because of the
recent Supreme Court decision now known as the Hobby Lobby decision, it
is necessary.
Let's talk about how we got here. As the Presiding Officer knows, we
worked on health care reform. We were so concerned that over 40 million
people didn't have access to health care. We were concerned that just
being a woman was treated as a preexisting condition. We were charged
double for our insurance, and we often had to pay significant
copayments for those procedures related to early detection and
screening, for those procedures that would affect us such as mammogram
care. So on a bipartisan basis we ended that discrimination so women
couldn't be charged more than men of the same age or comparable health
status.
We also wanted to be sure we could do preventive health care
benefits. That was an amendment I offered on the Senate floor. We had a
spirited debate, even with Senator Murkowski. Senator Murkowski and I
agreed on the same goals, but we had different methods. Ours won; mine
won. I wanted to be sure politicians didn't decide what was preventive
health care. I wanted to be sure politicians didn't decide what should
be covered or not, and I didn't want to bring politics into it. So we
turned to one of the most distinguished organizations in our government
that makes recommendations to our government on health care policy. It
is known as the Institute of Medicine. It is a nonpartisan group funded
by this Congress made up of scientific experts to advise us on medical
and health care. We wanted them to tell us what should be the
preventive services that were included.
So when we hear the criticism: ``Some government agency decided this;
some bureaucrat decided this''--these are scientists, these are
physicians, these are skilled researchers, and they determined that
women should have access to eight preventive health care benefits for
free. First of all, screening for gestational diabetes--that is, when a
woman gets diabetes while she is pregnant or because she is pregnant--
high risk to the mother, high risk to the child. That means high risk
HPV DNA testing, annual counseling and screening for HIV, comprehensive
lactation support, and counseling, screening for domestic violence, an
annual well-woman preventive care visit, and a full range of FDA-
approved contraceptive methods. That is what it was. It was the
Institute of Medicine--the Institute of Medicine--not Barbara Mikulski,
not the Democrats, not President Obama--that said the FDA-approved
contraceptive methods should be available.
That brings us to the Supreme Court and Hobby Lobby, a for-profit
company, employing thousands of people of different faiths and
religions.
Hobby Lobby's owners did not want to cover certain forms of
contraception for their female employees. They said it was against
their religious beliefs, and the Supreme Court agreed with that--
actually, the five men on the Supreme Court said they did not have to.
The women on the Supreme Court offered a dissenting opinion.
This ruling of the Court says the personal opinion of your employer
is more important than the medical opinion of your doctor. As the
Presiding Officer from Wisconsin knows--she, has put a lot of work into
understanding health care and the delivery system--contraceptive
methods are not always used to prevent pregnancy. Some are to deal with
fibroids and other medical conditions. This ruling, unfortunately, says
that a for-profit company can deny female employees coverage of
important preventive health care based on religious objections of the
company's health care ownership or leadership team.
I always felt health care decisions should be made by the patient and
their doctor, by a woman and her doctor, not by an employer or an
insurance company. So it concerns me greatly that the Supreme Court
Justices decided against that. It concerns me greatly that the Supreme
Court Justices decided the employers should have the power to determine
what medical care is available to their female employees. This is
pretty scary, actually. I support what Supreme Court Justice Ginsburg
said. What exemption does this extend? Does this go to blood
transfusions for some groups, antidepressants for some other groups,
vaccinations for other groups? The Supreme Court said: Oh, no, it is
only for this. Well, one Supreme Court decision leads to another
Supreme Court decision.
So Senator Murray, who is an architect of a bill of which I am a
cosponsor, has led the way. Her bill does two things. It prohibits
employers from denying coverage of specific health care items or
services if the coverage of that item or service is required by Federal
law. It keeps in place, however, protections for religious
organizations. So houses of worship can be exempted from this mandate
of contraceptive coverage, religious nonprofits can certify that they
do not want to offer contraceptive care, and insurers work separately
with employees.
The Supreme Court decision is an attempt to deny women's access to
birth control disguised as an effort to protect religious freedom. I am
a strong supporter of religious freedom. I stood on this floor and
voted with its architect, Senator Ted Kennedy--a happy memory--that we
would always have this religious protection of religious organizations,
their nonprofit affiliates.
So I hope we do support the Murray bill, that it follows the
processes within the Senate, and it comes to our attention. I believe
this will go a long way to clarifying this very important distinction
between the religious freedom, particularly of religious
organizations--houses of worship and the nonprofits affiliated with
them--but it does not embody in a private business the rights of an
individual.
Madam President, I thank you for your attention and that of the
Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. Thank you, Madam President.
I have to dispel some of the myths that are being told about the
Hobby Lobby decision.
First of all, one of the biggest distortions I think has been this
hashtag campaign #NotMyBossBusiness because before the Hobby Lobby
decision--and as now--employers cannot deny their employees access to
birth control.
So let's be clear. Employers cannot deny their employees access to
birth control. So the #NotMyBossBusiness hashtag and I think some of
the statements that are being made on the Hobby Lobby decision are a
misrepresentation or distortion of what that decision stands for.
You do not have to take my word for it. In fact, the Washington Post
Fact Checker yesterday debunked several of the outrageous claims that
are being made about this decision. In fact, here are some of the
things we know are true about the Hobby Lobby decision:
[[Page S4475]]
``Nothing in the ruling allows a company to stop a woman from getting
or filling a prescription for contraceptives.'' ``Nothing in the ruling
allows a company to stop a woman from getting or filling a prescription
for contraceptives.''
The majority opinion of Hobby Lobby actually states expressly that
``under our cases, women (and men) have a constitutional right to
obtain contraceptives.''
In fact, what the Fact Checker found in response to one lawmaker's
claim about the Hobby Lobby decision--who claimed that it means
employers can restrict the ability of their employees to use
contraceptives--the Washington Post stated:
No boss under this ruling has the right to tell an employee
that they cannot use birth control. That's simply wrong.
I think that is very important for the American people to understand,
for the women of this country to understand.
Also, the Washington Post, when debunking many of the claims made
about the Hobby Lobby decision, said: ``Simply put, the court ruling
does not outlaw contraceptives, does not allow bosses to prevent women
from seeking birth control and does not take away a person's religious
freedom.''
In fact, what the decision does is focus on the fact that under the
Religious Freedom Restoration Act, which was a law that was passed with
overwhelming support in the House of Representatives and in this body--
in fact, by our count, as I understand it, over a dozen Democrat
Members of the current Senate actually supported the Religious Freedom
Restoration Act in some way. It was signed into law by President
Clinton. So it used to be bipartisan that we would support religious
freedom in this body. The notion that somehow Hobby Lobby as a closely-
held corporation would have to give up all their religious beliefs
seems to me to be antithetical to what we supported on a bipartisan
basis in this Congress, which is the religious freedom of Americans
that is reflected in the First Amendment to our Constitution.
In fact, contrary to the misleading rhetoric, the Hobby Lobby
decision does not take away a woman's access to birth control. That
existed before the Hobby Lobby decision and it exists today. That
existed before ObamaCare and it exists today, thankfully.
No employee is prohibited from purchasing any FDA-approved drug or
device. Contraception remains readily available and accessible to women
nationwide. Prior to ObamaCare passing in this body, over 85 percent of
large businesses already offered contraceptive coverage to their
employees.
One thing that has not been mentioned is the ObamaCare mandate that
has been the subject of the Hobby Lobby decision does not even apply to
businesses that are under 50 employees in this country. So there are
millions of women for whom the mandate that is addressed in the Hobby
Lobby decision does not even apply to.
For lower income women, there are five programs at the U.S.
Department of Health and Human Services that ensure access to
contraception for women, including Medicaid.
In fact, more than 19 million women were eligible for government-
supported contraceptive assistance in 2010, and that has not changed.
So for those who would distort the Court's decision and insist that
we cannot stand for religious liberty while simultaneously ensuring
that women continue to have safe, affordable access to birth control--
it is just not true. We can do both and we need to do both on behalf of
the American people because people have deeply held religious beliefs,
and it was so important to our Founding Fathers that they put respect
for religion and protection of people's ability to choose what they
believe in in the First Amendment to the Constitution.
Americans believe strongly that we should be able to practice our
religion without undue interference from the government. That goes to
our character. So what happened in the Supreme Court's decision in
Hobby Lobby is reaffirming that, but it did not say an employer will
somehow now be making the decision whether a woman can have
contraception. That is not what it said. In fact, employers have no
right under the law to even know what my prescriptions are or any other
woman's prescriptions are for contraception. So any suggestion to the
contrary is entirely misleading.
The decision applies to closely-held businesses whose owners have
genuine religious convictions. In this case, the company's owner, the
Green family, agreed to provide coverage for 16 of the 20 contraceptive
methods that are required under ObamaCare, including birth control
pills. So I want people to understand that. They only had a moral
objection to the remaining four methods.
In the narrow ruling, the Court agreed, based on the Religious
Freedom Restoration Act--an act that was introduced into Congress by
the late Senator Edward Kennedy from Massachusetts and then-Congressman
Charles Schumer from New York. Again, it was supported by over a dozen
of my Democrat colleagues at the time. They brought forth the law
because they were concerned at the time about another Supreme Court
decision which held that generally applicable laws that have nothing to
do with religion could effectively prevent Americans from fully
exercising their religious rights. And guess what? It passed a then
Democrat-controlled House by voice vote and was approved by a Democrat-
controlled Senate by a vote of 97 to 3. There is not much that happens
around here 97 to 3.
When President Clinton signed it into law, he said: ``What this law
basically says is that the government should be held to a very high
level of proof before it interferes with someone's free exercise of
religion.''
In the Hobby Lobby decision, the government did not even try to meet
that standard. They have tried to meet that standard with other
religious organizations, but they did not even try in this situation to
contend what the Court found to be genuinely-held religious beliefs on
a very limited basis.
There have been a lot of misrepresentations about the breadth of this
decision. The Court's majority opinion explicitly states that the
ruling does not ``provide a shield for employers who might cloak
illegal discrimination as a religious practice.''
Additionally, the Court said that ``our decision should not be
understood to hold that an insurance-coverage mandate must necessarily
fall if it conflicts with an employer's religious beliefs,'' meaning
that someone must show a genuine religious objection. The government
can overcome it if they are willing to show that they can do it in a
less restrictive way. They did not even try in this case.
Well, some Americans may disagree with the family who owns the Hobby
Lobby stores. All Americans believe religious freedom is a fundamental
right that should not be abridged. When President Clinton signed the
Religious Freedom Restoration Act into law, he said:
Our laws and institutions should not impede or hinder, but
rather should protect and preserve fundamental religious
liberties.
I come to the floor today because I want people to understand this
decision. Employers cannot tell you what kind of contraception you can
have as a woman. Employers cannot even know what kind of contraception
you have as a woman. That is protected under HIPAA laws, privacy laws
that are very important.
Finally, this notion that it is not my boss's business--of course an
employer cannot tell you that you cannot go fill a prescription for
contraception. I think that to suggest otherwise is really to distort
what the facts of this case are.
I believe we can protect people's fundamentally-held religious
beliefs and provide women safe, effective access to contraception.
Because of that, I will be introducing legislation on the Senate floor.
That legislation would reaffirm that no employer can restrict an
employee's access to contraceptives. Finally, it would also ensure that
we look at ways to potentially give women greater access to
contraceptives.
The legislation I will be introducing would also ask the FDA to study
whether women can purchase contraceptives over the counter and whether
it would be safe and effective for adult women to be able to do so. So
we should have the FDA look at this issue to see if women can perhaps
have even greater access than they do right now.
But the American people need to understand that the Hobby Lobby
decision did not change women's access to
[[Page S4476]]
contraceptives. In fact, under our HIPAA laws, no employer can know
what kind of contraception you may have been prescribed or are using.
No employer can tell you that you cannot fill a prescription for any
kind of contraception that you think is appropriate and that your
doctor thinks is appropriate for you.
Finally, I would say our bill also does one other important thing;
that is, it repeals the restrictions ObamaCare put on health savings
accounts and flexible spending accounts. ObamaCare actually reduced the
amount someone can put aside on a tax-free basis to pay for their own
health care. ObamaCare also restricted the use of those accounts for
purchase of over-the-counter medications. I have had many of my
constituents complain to me about this. We would like to eliminate
those restrictions and give people greater ability to set aside money
on a tax-free basis to pay for their own health concerns, including
over-the-counter medications.
One thing I would say finally is that I have heard so much from my
constituents about the concerns they have with ObamaCare. I have heard
my colleagues on the other side of the aisle, who voted for ObamaCare,
now come to the floor and complain about the Hobby Lobby decision.
Well, I would argue that we are where we are today because they decided
that ObamaCare was the way to go for health care in this country.
I have heard from a lot of my both male and female constituents about
the real concerns they have with ObamaCare that I hope we will debate
on this floor. I have heard from people who lost policies they liked,
who are paying more for coverage than they were before, have higher
deductibles. I have had women write me about concerns that their
employer is going to cut their hours because of ObamaCare. Talk about a
bad mandate. It redefined the 40-hour workweek. It is now a 30-hour
workweek. So people are losing hours.
In my own State of New Hampshire, right now 10 of our hospitals are
excluded from the exchange. We are not a very big State. It is a big
deal. So some people have lost access to the doctor with whom they had
a longstanding relationship or the hospital where they had their first
child. Now, if they are expecting their second child and they are on
the exchange, that hospital is excluded, and they are in a situation
where ObamaCare is restricting women's rights as far as what hospital
they can go to, when they could have gone there before.
Those are the real issues as we think about what has happened with
ObamaCare. There are so many other issues I could talk about, stories
my constituents have written to me. But I would hope the American
people understand that employers cannot restrict your access to
contraception. We will reassert in our bill that no employer can do
that. We will look at the FDA studying whether women can potentially
have greater access to contraceptives in a safe and effective manner by
looking at whether adult women can safely purchase contraceptives over
the counter.
I yield the floor.
The PRESIDING OFFICER (Mr. Manchin). The Senator from New Mexico.
Mr. HEINRICH. I rise to speak on the pending nominations.
I appreciate the majority leader scheduling this vote to confirm Mr.
Norman Bay to be a member of the Federal Energy Regulatory Commission.
FERC is one of the lesser known but perhaps one of the most important
independent agencies in the Federal Government. It has jurisdiction
over interstate transmission of electricity, oil, and natural gas, as
well as licensing of hydroelectric power.
I believe Mr. Bay will be an outstanding member of the Federal Energy
Regulatory Commission. I urge all of my colleagues to support his
nomination today.
Since 2009 Mr. Bay has been the Director of the Office of Enforcement
at FERC, where he has gained extensive experience in the regulation of
energy markets. The Office of Enforcement is responsible for market
oversight and surveillance and for implementing the antimanipulation
authority Congress enacted in the Energy Policy Act of 2005. This
authority provided FERC new tools to combat the type of market
manipulation that produced the devastating power crisis a decade ago
across the West.
Under Mr. Bay's leadership, FERC has increased transparency in its
work, while bringing a number of enforcement actions that have helped
protect the integrity of the energy markets and provided $300 million
in relief to consumers--$300 million back into the pockets of energy
consumers.
He is a graduate of Dartmouth College and Harvard Law School and has
had a long and distinguished career of public service. Before joining
FERC, he taught law at the University of New Mexico. He also served as
an assistant U.S. attorney and in 2000 was nominated by the President
to be the U.S. attorney for the District of New Mexico. He was
confirmed in that position by the full Senate by unanimous consent.
Mr. Bay is an outstanding public servant with extensive experience in
the field of energy markets. I am confident he will judiciously
implement FERC's statutory responsibility of oversight of our Nation's
energy infrastructure, competitive markets, and reliability.
At his confirmation hearing in May, members of the Energy and Natural
Resources Committee had a chance to question Mr. Bay extensively on his
work at the FERC and his views on regulatory policy. Senator Pete
Domenici, a former chairman and longtime member of the energy committee
from my home State of New Mexico, spoke at the hearing in strong
support of Mr. Bay's nomination. Senator Jeff Bingaman, another former
chairman of the energy committee from New Mexico, wrote a letter in
support of his nomination.
The Senate must give consent to the President's nominees to be
members of the FERC. The Senate is fulfilling that responsibility with
this vote today. However, there should be no misunderstanding--Congress
gave the President alone the responsibility of designating a member of
the Commission to be the Chairman of the Commission. The law enacted by
Congress in 1977 remains very clear: The President, and not the Senate,
determines who will serve as Chairman of the Commission.
I believe Mr. Bay will be fair, balanced, pragmatic, and a consensus-
oriented member of the FERC. He will decide cases on the merits, based
on the facts, based on the law and on the record.
I am pleased to support the nominations of both Commissioner LaFleur
and Mr. Bay to be members of the Federal Energy Regulatory Commission.
I hope the Senate will vote today to confirm them both.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Mr. President, I ask unanimous consent to speak for up to
10 minutes and that it not be counted against the majority's time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Economy
Mr. THUNE. Mr. President, last week the President was in Denver, CO,
where he talked about the economy. He said this: ``By almost every
measure, we are better off than when I took office.'' That is quite a
statement. ``By almost every measure we are better off than when I took
office.'' I know a lot of Americans struggling with high health care
bills who might disagree with that because the truth is that very few
Americans are better off than they were 5\1/2\ years ago. Household
income has plummeted by more than $3,300 since the President took
office. Meanwhile, the price of everything, from milk to the
refrigerator to store it in, has risen. Gas prices have nearly doubled
since the President took office. College costs have soared. Of course,
family health insurance premiums have increased by nearly $3,000 per
family.
Combine reduced income with higher prices and you get a reduced
living standard. Under the Obama Presidency, families who were once
comfortably in the middle class are now struggling to make ends meet.
Other Americans have dropped out of the middle class altogether.
There are 3.7 million more women in poverty today than there were
when the President took office. Mr. President, you want to talk about
the war on women?
[[Page S4477]]
When the President took office, 33 million Americans were on food
stamps. Today more than 46 million Americans receive food stamps.
Americans struggling financially have had few opportunities to get
ahead because the Obama economy has offered very little in the way of
opportunity.
The President likes to talk about the jobs the economy has gained
recently. But what he does not say is that 5 years after the recession
officially ended, our economy is still posting recession-type levels of
unemployment.
Back in 2009 the President's economic advisers confidently predicted
that unemployment would fall below 6 percent in 2012. Well, here we are
2 years later. We are still not below 6 percent unemployment even after
a historic expansion of monetary policy and the largest fiscal stimulus
since World War II. The only reason the unemployment rate is not higher
is because so many Americans have given up looking for a job entirely
and dropped out of the workforce. The labor force participation rate
currently stands at 62.8 percent--near a 36-year low. To put it another
way, if the labor participation rate today were what it was when the
President took office, unemployment would not be a little over 6
percent, it would be 10.2 percent. That is how many people have
completely dropped out of the labor force and are no longer even
looking for a job.
Then there are the millions of Americans who are working part time
because they cannot find a full-time job. The Labor Department reported
that the economy lost more than half a million full-time jobs in June
and gained almost 800,000 part-time jobs. That is not a good statistic.
It is the rare part-time job that pays all the bills and gives
financial stability. Americans need more full-time jobs, not more part-
time jobs.
They also need the opportunity for higher paying jobs, but that is
another opportunity which is in short supply in the Obama economy.
Forty-one percent of the jobs lost during the recession were high-wage
jobs, but just 30 percent of the jobs recovered have been high-wage
jobs. Similarly, 37 percent of the jobs lost in the recession were
midwage jobs, while just 26 percent of the jobs gained since the
recession have been midwage jobs. Meanwhile, while just 22 percent of
the jobs lost during the recession were low-wage jobs, 44 percent of
the jobs gained since the recession have been low-wage jobs.
We are trading high-wage jobs for low-wage jobs, full-time jobs for
part-time jobs. That is the reality that many Americans are
experiencing. The Obama recovery, however, has been producing low-wage
part-time jobs--not the types of jobs that Americans need for a future
of financial security and stability.
No policy is threatening Americans' economic future more than
ObamaCare. As every American knows, ObamaCare has failed to deliver on
its promise of making health care more affordable. The President
promised that his health care law would reduce premiums by $2,500.
Instead, premiums have risen.
Millions of Americans had their insurance plans cancelled and were
told that their new plans would cost more--sometimes much, much more.
One constituent wrote to tell me that the cheapest plan she could find
for her family of four would cost $17,000. Another wrote to tell me
that his insurance plan was cancelled due to ObamaCare and the cheapest
bronze plan he could find was $987 a month--more than double what he
was paying before. On top of that, the plan had a higher deductible and
significantly higher cost-sharing requirements than his old plan.
I am sure every one of my colleagues--Democrats and Republicans--has
received letters just like this. Our constituents are hurting. What
middle class family can afford to pay $17,000 a year in insurance or
double its health care premiums from the year before?
ObamaCare is placing an immense burden on middle-class families. The
huge premium hikes that many Americans are facing are having a real
impact on families' budgets. Money eaten by health care costs is money
that can't be spent on a daughter's college education or a new car to
replace the failing one or on repairs for the roof--and there is
seemingly no end to ObamaCare's penalties.
In addition to hiking insurance premiums, ObamaCare is also
encouraging companies to drop spousal coverage from their health plans.
UPS and the University of Virginia, for example, have already dropped
spousal coverage because of ObamaCare. Women are particularly affected
by this since, as the Wall Street Journal reports, they tend to be the
ones being dropped from employer-sponsored health care plans.
Then there is ObamaCare's marriage penalty. A woman who qualifies for
a tax subsidy to help her purchase insurance could lose that subsidy if
she gets married--even if both she and her husband qualified for the
subsidy when they were single.
ObamaCare isn't just hiking Americans' health care bills, it is also
damaging their economic prospects. Thanks to the 30-hour workweek rule,
ObamaCare is helping to drive the surge in part-time employment.
Businesses that couldn't afford to give health insurance to workers
working more than 30 hours have been forced to reduce their employees'
hours and, by extension, their wages. Sixty-three percent of those
affected by this provision are women.
Then there is the employer mandate, which is discouraging wage growth
and making it more difficult for employers to grow their businesses and
to hire new workers. When employers are forced to pay for benefits they
can't afford, they often have no choice but to reduce wages or cancel
raises and abandon plans for growing their businesses.
Then there are the other ObamaCare provisions that discourage job
growth, such as the tax on medical devices such as pacemakers and
insulin pumps, which has already been responsible for the loss of
thousands of jobs in the medical device industry.
The last thing that we need right now in this weak economy is the
kind of widespread devastation ObamaCare is causing. Americans are
being hit from both sides. ObamaCare is raising their medical bills and
it is destroying their job opportunities.
If the President were serious about trying to help middle-class
Americans, he would be looking at where his health care law went wrong
and at least supporting fixes for its most damaging provisions.
If Democrats were serious about fixing health care and helping the
economy, they would be taking up Senator Collins' Forty Hours is Full
Time Act, which would fix the ObamaCare 30-hour workweek rule and put
Americans back to work or they would support my bill to eliminate the
employer mandate for schools, colleges, and universities, so that these
institutions aren't forced to cut wages or to eliminate positions.
Democrats thought if Americans found out what was in ObamaCare and
what it meant for them, they would come to like it. Well, Americans
have found out what is in the President's health care law, what it
means for them, and they don't like it.
ObamaCare is hurting American families, it is hurting our economy,
and it is time to start over and replace this bill with real health
care reform, the kind that will lower costs, that will increase choice,
and that will put Americans back in charge of their health care.
Mr. PORTMAN. Mr. President, I rise in support of the nomination of
Cheryl LaFleur to serve as a commissioner on the Federal Energy
Regulatory Commission, and in opposition to the nomination of Norman
Bay to serve as a commissioner on the Federal Energy Regulatory
Commission.
On May 20, the Energy and Natural Resources Committee, of which I am
a member, held a hearing on these two nominations. I had questions
regarding Mr. Bay's qualifications prior to that hearing, and they were
not allayed. If anything, they were reinforced. Mr. Bay's experience in
the energy field consists of his service over the past 5 years as
Director of the Office of Enforcement at the FERC, a tenure which has
been marked by that office's controversial theories of market
manipulation and concerns by long-time industry experts about due
process. Mr. Bay has 5 years of enforcement experience, but he has no
regulatory experience. By contrast, Commissioner LaFleur, currently
serving as the Acting Chairman of the FERC, has 5 years of experience
on the FERC and decades of experience in the energy sector, including
as a State utility commissioner.
[[Page S4478]]
Yet we are being asked to demote Commissioner LaFleur to commissioner
and replace her with an unproven and arguably less qualified candidate.
But most important from my perspective is whether a nominee will
address the key responsibilities assigned to the agency to which he or
she is being nominated. At FERC, job one with respect to the electric
sector is assuring just and reasonable electric service in interstate
commerce, which Congress has found for the past 80 years to be in the
public interest. Assuring the reliability of such service is an
important task that Congress explicitly made part of FERC's
responsibilities nearly a decade ago.
At our May 20 hearing, I asked Mr. Bay whether he agreed with the
developing consensus that baseload power plants, the ``always on''
energy resources vital to reliable operation of the grid, deserve
additional consideration for the irreplaceable reliability benefits
they provide. Mr. Bay answered that he looked forward to reviewing
comments on the issue. I then asked whether as a commissioner he would
look at the cumulative effect of EPA rules that, by various estimates,
have resulted in the announced closure of 40,000 to 70,000 megawatts of
coal-fired power plants across the country, many of them in Ohio, the
closure of which has raised strong concerns about maintaining electric
reliability in many parts of the country. He answered that if
confirmed, he would be willing to discuss the issue with his colleagues
to see if consensus could be reached.
Mr. President, these are simple questions that go to the heart of
FERC's mission. On both, Mr. Bay gave non-answer answers that are the
basis for substantial concern. Either you agree that something needs to
be done to keep power plants running that are vital to maintaining a
reliable electric system, or you don't. Either you are concerned that
EPA's rules, which even the environmental groups attribute to
shuttering more than 68,000 megawatts of coal-fired generation, need to
be evaluated for their electric reliability impacts, or you don't.
A presidential nominee deserves the benefit of the doubt, but in the
case of Mr. Bay, whose nomination has been rushed to the floor, the
doubts remain too strong.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Unanimous Consent Agreement--Calendar Nos. 894, 704, and 508
Mr. REID. Mr. President, I ask unanimous consent that following the
vote on confirmation of Executive Calendar No. 842, the Senate remain
in executive session and consider Calendar Nos. 894, Nealon; 704, Wood;
and 508, Jaenichen; that there be 2 minutes for debate equally divided
between the two leaders or their designees prior to each vote; that
upon the use or yielding back of time, the Senate proceed to vote
without intervening action or debate on the nominations in the order
listed; that any rollcall votes, following the first in the series, be
10 minutes in length; that the motions to reconsider be considered made
and laid upon the table, with no intervening action or debate; that no
further motions be in order to the nominations; that any statements
related to the nominations be printed in the Record; that the President
be immediately notified of the Senate's action and the Senate then
resume legislative session.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. For the information of all Senators, we expect the
nominations considered in this agreement to be confirmed by voice vote.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I wish to make a few comments about
nominees that are before the Senate for confirmation and to thank
Members on both sides of the aisle for working together to try to move
forward two very important nominees for FERC.
First, let me say there has been some criticism of one of the
nominees from some Members of the other party and, of course, everyone
is entitled to their opinion; that is what the Senate is for. But I
would like to make sure that the Senate record reflects an opinion of
someone whom I admire greatly and I believe is very admired--
significantly admired--by every Member of this Senate, and that is the
opinion of Senator Domenici, the Republican chair of the Energy and
Natural Resources Committee for many years and a long-serving Senator
from the State of New Mexico.
Senator Domenici, it may not be clearly understood, actually came to
the energy committee to testify on behalf of Norman Bay.
His testimony was one of the most artful and compelling I have seen
in my days here--which are now quite long at almost 18 years--and
unusual in the sense that he read from no script, spoke from the heart,
and spoke to Democratic and Republican members of our committee. This
is some of what he had to say:
I am pleased to provide a strong statement of support to
the Senate Energy and Natural Resources Committee on behalf
of Norman C. Bay. I first met Norman in early 2000, when he
was nominated to be the U.S. Attorney in the District of New
Mexico. I supported his nomination then and I support his
nomination now to the Federal Energy Regulatory Commission .
. .
He was a good U.S. Attorney--fair, capable, and non-
partisan--and, with my support, he remained in office as U.S.
Attorney until 2001.
He continues:
In July 2009, Norman became the Director of the Office of
Enforcement (OE) at FERC. This is a big job, because among
other things OE must administer the anti-manipulation
authority of the Energy Policy Act of 2005--a bill that I had
authored when I was the Chairman of the Senate Committee on
Energy and Natural Resources and one that passed with wide
bipartisan support. The anti-manipulation authority was
intended to give FERC the tools to combat the type of
manipulation we saw in the Western Power Crisis from 2000 to
2001. I am pleased to hear that FERC has brought a number of
significant anti-manipulation cases and that the EPAct
authority I gave to FERC has been put to good use to protect
consumers, as well as the integrity of the wholesale natural
gas and power markets.
I could not think of a more compelling person to have in your corner
than the former Republican chair of the energy committee in support of
the Bay nomination.
Now, there are a handful of Members on the other side that have
opposed every nominee put forward by President Obama because their
agenda is very different. It is a political agenda. But on policy,
Senator Pete Domenici's testimony goes a long way in his support of a
man who he believes is extremely qualified for the job to which the
President has nominated him.
In addition to the compelling testimony of Senator Domenici, which
was very influential in my final decision to support this nominee, I
also want to present for the record the letter from the Republican
Governor of New Mexico, Susana Martinez, who let me know personally
that she would have loved to have been there personally to testify on
behalf of Norman Bay but was unable to do so because of her schedule.
She goes on to write a strong letter of recommendation, which is in the
record of our committee. She says:
I am certain that Norman has been dedicated in his efforts
to protect consumers, has been fair and balanced in his
approach, and has focused on doing the right thing on behalf
of the public interest.
For all those reasons, I hope the Committee on Energy and
Natural Resources will approve Norman's nomination to the
Federal Energy Regulatory Commission.
These are just a few of the strong testimonials that led me to
finally consent to my support of Norman Bay, but I did so with the
support of the Presiding Officer as a member of the Energy and Natural
Resources Committee, making sure that the current chair, Cheryl
LaFleur, could stay on for an additional length of time. I would have
liked another year. Some people wanted 3 months, some people wanted 6
months, and some people wanted a full term. But we settled on a 9-month
compromise--which is actually the fundamental nature of our business in
the Senate.
It has been lost in the last couple of years, but I continue to be an
optimistic believer that a good compromise can help us move the country
forward, reduce rancor, hold people together, and make some decisions
that are so important for the people who we are trying to serve.
FERC is not an insignificant entity. FERC, given the power by us, is
the guardian of the public interest in our natural gas and electricity
markets,
[[Page S4479]]
something that Louisiana knows a lot about--natural gas and electricity
markets.
We produce a tremendous amount of oil and gas for this Nation, and we
consume a lot of oil and gas as producers of chemicals and other
products that use natural gas as a feedstock. We are proud of our
industry, and I would never casually support members on FERC if I
didn't believe they were prepared to do this job and to do it well.
In particular, with the testimony from the former Republican chairman
of the committee and a current serving Republican Governor for Norman
Bay, I feel confident, based on his background, that he could do a good
job, after working with Cheryl LaFleur for 9 months, which is the
agreement that the White House and others have made.
Let me talk about Cheryl LaFleur for a moment. She is a graduate of
Princeton. She is able, she is competent, and she has served as a
member of FERC. She, in my view, has also been doing a spectacular job.
She will continue to serve as chair of FERC for the next 9 months--
should she be confirmed today--and will continue with the members of
FERC to try to provide reliable power and electricity to our country--
being fair and protecting the public interest.
This is a very complicated field of law and policy, as we know. This
is not an easy part of the law to interpret.
There are many different electricity markets, there are many
different ways to supply it. They are not-for-profits, they are
municipals, and they are public utility companies. They all have
pipelines and issues that have to go before FERC, and there are over
2,000 people who work for this agency. It may not be a household word,
but it affects every household in America. So Cheryl LaFleur will
remain, at my request, as chair for 9 months. Norman Bay will come on
and train, if you will, under her leadership, and I think grow into the
role as a policymaker. He clearly is qualified--by the demonstration of
the letters I have put in.
I thank the Presiding Officer for the leadership role he has played
in outlining that path forward, trying to broker a compromise between
people who wanted to do it very differently.
We had opposition on both sides for what is actually happening today,
as we know, but we worked with Democrats and Republicans, trying to
find a way forward, honoring the right of the President to make his
nominations and still doing the right thing by FERC and the country. I
personally think we have achieved that. I wanted to put that on the
record before we vote. I understand the vote should be called any
moment now.
I yield the floor.
Vote on Bay Nomination
The PRESIDING OFFICER. Under the previous order, all postcloture time
has expired. Under the previous order, there will now be 2 minutes of
debate prior to a vote on the Bay nomination.
Ms. LANDRIEU. Mr. President, I ask unanimous consent to yield all
time back for both sides.
The PRESIDING OFFICER. Without objection, all time is yielded back.
Under the previous order, the question is, Will the Senate advise and
consent to the nomination of Norman C. Bay, of New Mexico, to be a
Member of the Federal Energy Regulatory Commission for the term
expiring June 30, 2018?
Ms. LANDRIEU. I ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Schatz) is
necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Tennessee (Mr. Alexander) and the Senator from Tennessee
(Mr. Corker).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``nay'' and the Senator from Tennessee (Mr.
Corker) would have voted ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 52, nays 45, as follows:
[Rollcall Vote No. 224 Ex.]
YEAS--52
Baldwin
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heller
Hirono
Johnson (SD)
Kaine
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--45
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Cornyn
Crapo
Cruz
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heitkamp
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
King
Kirk
Lee
McCain
McConnell
Moran
Murkowski
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Walsh
Wicker
NOT VOTING--3
Alexander
Corker
Schatz
The nomination was confirmed.
Vote on LaFleur Nomination
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate prior to a vote on the LaFleur nomination.
Mr. JOHANNS. Mr. President, I yield back all time and ask for the
yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Cheryl A. LaFleur, of Massachusetts, to be a member of the Federal
Energy Regulatory Commission for the term expiring June 30, 2019?
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Schatz) is
necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Tennessee (Mr. Alexander) and the Senator from Tennessee
(Mr. Corker).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea'' and the Senator from Tennessee (Mr.
Corker) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 90, nays 7, as follows:
[Rollcall Vote No. 225 Ex.]
YEAS--90
Ayotte
Baldwin
Barrasso
Begich
Bennet
Blumenthal
Blunt
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Coons
Cornyn
Crapo
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Flake
Franken
Graham
Grassley
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
Markey
McCain
McCaskill
McConnell
Menendez
Merkley
Murkowski
Murphy
Murray
Nelson
Paul
Portman
Pryor
Reed
Reid
Risch
Rockefeller
Rubio
Sanders
Scott
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--7
Cardin
Gillibrand
Mikulski
Moran
Roberts
Schumer
Walsh
NOT VOTING--3
Alexander
Corker
Schatz
The nomination was confirmed.
[[Page S4480]]
____________________