[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 20124-20139]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  ENERGY POLICY ACT OF 2003--Continued

  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, I ask unanimous consent that the 
pending amendment be set aside.
  The PRESIDING OFFICER. Is there objection?
  Mr. DOMENICI. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DOMENICI. Does the Senator want to offer a second-degree 
amendment to the electricity amendment?
  Mr. FEINGOLD. Yes.
  Mr. DOMENICI. I did not know that. I did not understand that.
  Mr. FEINGOLD. My attempt was to set aside what I thought was a 
pending amendment to your amendment and then to offer a different 
amendment to your amendment. And I make that request again.
  Madam President, I ask that in the form of a unanimous consent 
request, that the pending amendment to the Domenici amendment be set 
aside.
  Mr. DOMENICI. Well, they have all been currently set aside for 
amendments to the electricity amendment, Madam President. That is why I 
wondered, what is the need for the unanimous consent request?
  The PRESIDING OFFICER. There are currently pending second-degree 
amendments which would have to be set aside.
  Mr. DOMENICI. I have no objection to the request.
  Mr. REID. Will the Senator from Wisconsin yield?
  Mr. FEINGOLD. I yield to the Senator from Nevada.
  Mr. REID. Madam President, I direct this question through you to the 
distinguished manager of the bill for the majority. I have had a number 
of inquiries during the vote as to whether or not, when the Secretary 
of Defense comes here at 4 o'clock this afternoon, we are going to take 
a recess. We have a number of Democrats who are going to attend. I 
assume there will be members of the majority attending that briefing 
also.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, if somebody is discussing an 
amendment, and there is business on the floor of the Senate, we will 
not recess; we will work.
  The PRESIDING OFFICER. Without objection, the request of the Senator 
from Wisconsin is granted.
  Mr. FEINGOLD. Thank you, Madam President.


                Amendment No. 1416 To Amendment No. 1412

  Madam President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself and 
     Mr. Brownback, proposes an amendment numbered 1416.

  Mr. FEINGOLD. Madam President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To protect the public and investors from abusive affiliate, 
        associate company, and subsidiary company transactions)

       Beginning on page 35, strike line 10 and all that follows 
     through page 35, line 15, and insert the following:

     SEC. 1156. AFFILIATE, ASSOCIATE COMPANY, AND SUBSIDIARY 
                   COMPANY TRANSACTIONS.

       Section 204 of the Federal Power Act (16 U.S.C. 824c) is 
     amended by adding at the end the following:
       ``(i) Transactions With Affiliates and Associated 
     Companies.--
       ``(1) Definitions.--In this subsection, the terms 
     `affiliate', `associate company', `public utility', and 
     `subsidiary company' have the

[[Page 20125]]

     meanings given the terms in section 1151 of the Energy Policy 
     Act of 2003.
       ``(2) Regulations.--
       ``(A) In general.--The Commission shall promulgate 
     regulations that shall apply in the case of a transaction 
     between a public utility and an affiliate, associate company, 
     or subsidiary company of the public utility.
       ``(B) Contents.--At a minimum, the regulations under 
     subparagraph (A) shall require, with respect to a transaction 
     between a public utility and an affiliate, associate company, 
     or subsidiary company of the public utility, that--
       ``(i) the affiliate, associate company, or subsidiary 
     company shall be an independent, separate, and distinct 
     entity from the public utility;
       ``(ii) the affiliate, associate company, or subsidiary 
     company shall maintain separate books, accounts, memoranda, 
     and other records and shall prepare separate financial 
     statements;
       ``(iii)(I) the public utility shall conduct the transaction 
     in a manner that is consistent with transactions among 
     nonaffiliated and nonassociated companies; and
       ``(II) shall not use its status as a monopoly franchise to 
     confer on the affiliate, associate company, or subsidiary 
     company any unfair competitive advantage;
       ``(iv) the public utility shall not declare or pay any 
     dividend on any security of the public utility in 
     contravention of such rules as the Commission considers 
     appropriate to protect the financial integrity of the public 
     utility;
       ``(v) the public utility shall have at least 1 independent 
     director on its board of directors;
       ``(vi) the affiliate, associate company, or subsidiary 
     company shall not acquire any loan, loan guarantee, or other 
     indebtedness, and shall not structure its governance, in a 
     manner that would permit creditors to have recourse against 
     the assets of the public utility; and
       ``(vii) the public utility shall not--

       ``(I) commingle any assets or liabilities of the public 
     utility with any assets or liabilities of the affiliate, 
     associate company, or subsidiary company; or
       ``(II) pledge or encumber any assets of the public utility 
     on behalf of the affiliate, associate company, or subsidiary 
     company;

       ``(viii)(I) the public utility shall not cross-subsidize or 
     shift costs from the affiliate, associate company, or 
     subsidiary company to the public utility; and
       ``(II) the public utility shall disclose and fully value, 
     at the market value or other value specified by the 
     Commission, any assets or services by the public utility 
     that, directly or indirectly, are transferred to, or 
     otherwise provided for the benefit of, the affiliate, 
     associate company, or subsidiary company, in a manner that is 
     consistent with transfers among nonaffiliated and 
     nonassociated companies; and
       ``(ix) electricity and natural gas consumers and investors 
     shall be protected against the financial risks of public 
     utility diversification and transactions with and among 
     affiliates and associate companies.
       ``(3) No preemption.--This subsection does not preclude or 
     deny the right of any State or political subdivision of a 
     State to adopt and enforce standards for the corporate and 
     financial separation of public utilities that are more 
     stringent that those provided under the regulations under 
     paragraph (2).
       ``(4) Prohibition.--It shall be unlawful for a public 
     utility to enter into or take any step in the performance of 
     any transaction with any affiliate, associate company, or 
     subsidiary company in violation of the regulations under 
     paragraph (2).''.

  Mr. FEINGOLD. Madam President, I rise today to offer an amendment on 
behalf of myself and the Senator from Kansas, Mr. Brownback. I am 
pleased that the Senator from Kansas is joining me in this effort, and 
he has done so because I know he shares my view that the repeal of the 
Public Utility Holding Company Act in the underlying bill creates a 
serious regulatory void and market flaw that Congress should correct.
  I am so pleased this is a bipartisan effort. I believe we have broad 
support in this body and beyond for these amendments.
  These amendments would improve on the bill by making clear the 
actions that the Federal Energy Regulatory Commission--or FERC--must 
take to ensure that deregulated holding companies do not outcompete our 
small businesses, damage their financial standing, and then pass the 
costs of bad investments to consumers.
  Our amendment is supported by a wide and impressive coalition of 
business, labor, financial, and consumer groups which include: the 
Independent Electrical Contractors, Air Conditioning Contractors of 
America, Plumbing-Heating-Cooling Contractors, Associated Builders and 
Contractors, National Electrical Contractors Association, Mechanical 
Contractors, Sheet Metal Air Conditioning Contractors, the 
International Brotherhood of Electrical Workers, the National Alliance 
for Fair Competition, the Small Business Legislative Council, Consumers 
for Fair Competition, and the Association of Financial Guaranty 
Insurors.
  The Senator from Kansas and I are concerned because electricity is 
not like other commodities. Electricity is essential to public well-
being. When this bill is enacted and the Public Utility Holding Company 
Act is repealed, a strong incentive will exist for large utilities with 
the financial resources and the potential to exercise market power to 
get larger. Already, the electric utility industry is undergoing rapid 
consolidation. In the past 3 years alone, there have been more than 30 
major utility mergers and acquisitions, creating large multistate 
holding companies, including several in my own home State and with 
utilities in Minnesota that serve Wisconsin. Many companies have seen 
their stock plunge and credit ratings downgraded, and these companies 
are now prime buy-out targets.
  I acknowledge that deregulation is not inherently bad and should not 
always be prevented. It can produce efficiencies, economies of scale 
and cost savings for electrical consumers. However, it can also reduce 
competition, increase costs, and frustrate effective regulator 
oversight. This amendment protects consumers from assuming the costs 
and risks of utility diversification into non-utility businesses, 
prevents utilities from subsidizing affiliate ventures and competing 
unfairly with independent businesses, and protects utility investors. 
It does so by requiring FERC to issue regulations that require 
affiliate, associate, and subsidiary companies to be independent, 
separate, and distinct entities from public utilities; maintain 
separate books and records; structure their governance in a manner that 
would prevent creditors from having recourse against the assets of 
public utilities; and prohibit cross-subsidizing, or shifting costs 
from affiliate, associate, or subsidiary companies to the public 
utilities.
  The Public Utility Holding Company Act was enacted in 1935 to rein in 
the pervasive economic and political sway that holding companies held 
over the Nation's public utilities at that time. Studies conducted by 
the Federal Trade Commission and the U.S. House of Representatives at 
the time demonstrated that the holding companies, which controlled 
approximately 80 percent of the Nation's gas and electric utilities, 
were exploiting both consumers and investors. At the time PUHCA was 
passed, 16 major holding companies and their utility subsidiaries 
produced more than three-quarters of the electric energy in this 
country.
  Individual States and localities enacted their own laws, but were 
unable to control these multi-State holding companies--many of which 
also held investments in foreign countries--and their utility 
subsidiaries. Holding companies created organizational structures that 
extended across State lines, specifically to place the holding 
companies beyond the regulatory reach of the individual State 
commissions. In fact, registered holding companies were formed 
specifically for the purpose of avoiding regulation. Holding companies 
leveraged their utility assets to gain financing for risky investment 
ventures and engaged in anticompetitive behavior.
  PUHCA requires that proposed investments benefit the utility system, 
and not harm ratepayers, shareholders or the public interest.
  PUHCA requires that holding companies seeking to acquire utilities 
obtain preapproval from the Securities and Exchange Commission. In 
addition, a particular class of holding companies, known as 
``registered holding companies,'' those holding companies with utility 
subsidiaries in more than one State, must obtain SEC approval also for 
acquisitions of nonutility businesses. The SEC has authority to oversee 
and provide advance approval for the complicated financial transactions 
of the registered holding companies,

[[Page 20126]]

 including intrasystem transactions and diversification into 
unregulated businesses.
  PUHCA does these things, but the bill before us repeals PUHCA. As a 
result, registered holding companies will be able to freely diversity 
into unregulated businesses, and to engage in interaffiliate 
transactions in which the holding company and nonutility businesses 
drain financial resources and key assets from the utility businesses.
  In California, for example, holding company maneuvers have left 
California utilities in a weakened financial condition. Billions of 
dollars have been moved out of their utility companies into the holding 
company and then into their unregulated affiliates which are protected 
by laws that now put this cash beyond the reach of even the holding 
company. As a result, the utilities have had too little cash to carry 
out their utility obligations.
  In addition, even with PUHCA, we are already experiencing concerns 
about utilities expanding into electricity-related services and 
outcompeting small businesses in my State. Small contractors can't 
compete against big utilities in areas like energy efficiency upgrades 
to private homes, when big utilities can use existing assets like 
personnel, equipment, and vehicles to perform those services. When 
PUCHA is repealed, utilities will be able to expand into other business 
areas, and we should make certain that we protect small businesses.
  This amendment is good public policy, and it will strengthen the 
Senate's position in Conference with the House of Representatives. I 
urge my colleagues concerned about ensuring fairness in a deregulated 
system to support this amendment.
  Let me say how delighted I am to be working with the Senator from 
Kansas who I know has a deep and abiding commitment to small businesses 
as well.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I thank my colleague from Wisconsin 
for offering this amendment. I join him on it.
  The amendment my colleague from Wisconsin has described first came to 
my attention by a constituent and a friend of mine, D.L. Smith, Topeka, 
KS. D.L. is a great K-Stater, loves his country, has a medium size 
contracting business. He employs between 57 and 100 Kansans. Founded in 
1972, the DL Smith companies provide commercial, institutional, and 
industrial electrical services and, in recent years, even a little bit 
of telecommunications. They have been expanding slightly. D.L.'s 
service trucks can be seen as far west as Salina and as far south as 
Pittsburg, KS.
  DL's is a successful medium size business by Kansas standards. It 
might grow and could become more successful. But it might not be able 
to grow and could falter. The success or failure of this business will 
in great part be dependent upon the dispensation of this amendment.
  This is what he brought to my attention. D.L. said: Look, what is 
taking place is we are having to compete with these large utility 
companies that he asserts are using their regulated business to 
subsidize the unregulated business and drive the small contractors out 
of business. That is my 15-minute speech, what he said and the examples 
he gave.
  What he does now is help in the contracting of electrical services 
into homes. He is having to compete now with very large utility 
companies that are looking at other areas they can expand into to be 
able to do contracting work and, in the process, are driving these 
small to mid-size businesses out of business.
  Such diversification on the part of the utility companies has been 
the cause of significant and continuing harm to many small private 
sector firms. Utility-owned subsidies and affiliates now operate in 
almost every imaginable type of business, from auto salvaging to resort 
management to real estate brokerage to, more frequently, electric and 
mechanical contracting. Utilities now routinely sell appliances, 
provide plumbing, heating and cooling, and service contracts, engage in 
insulation work, sell and install storm windows and doors, provide 
outdoor lighting and interior lighting fixtures.
  Normally as a free market Republican, I wouldn't have much problem 
with that. This is a free country. People can compete the way they want 
to, the way they choose. The problem with this is, you have a regulated 
utility that has a clear income source that is dependent upon 
ratepayers that is set by the Government, and they have a flow of 
resources that is established by the public sector. And it is a rate of 
return based upon cost plus.
  The challenge--and what the D.L. Smiths of the world are feeling--is 
the subsidization of that regulated business going into the unregulated 
field and driving small to mid-size contractors out of business. Too 
many companies are doing a very natural thing--trying to grow, get a 
little more business here and there for their shareholders to try to be 
able to hold down the cost of electrical rates to their customers. That 
is understandable. The problem is, you are using that regulated utility 
where they don't have competition coming in there to compete against an 
unregulated field and, in many cases, driving out small to mid-size 
contractors like the D.L. Smiths of Topeka, KS, and others.
  Private sector businesses both small and large welcome competition. 
Unfortunately, there have been numerous instances where utilities have 
engaged, in some cases, in unfair and abusive competitive behavior 
which undermines true competition in these impacted markets.
  The primary obstacle to free, fair, and open competition in these 
markets is the ability of a utility to provide its affiliates and 
subsidiaries with artificially lower costs of operation through cross-
subsidization and the failure to properly recover the true costs of 
equipment and services provided by the utility to such unregulated 
operations. These advantages arise neither from size, nor efficiency, 
but rather from the corporate relationship such operations have with 
its related utility.
  The utility companies are doing, by and large, a great job in serving 
the public, providing utility rates at as low a cost as possible. That 
is a good thing. They work conscientiously to do that. We have a number 
of very good utility companies in the State of Kansas. When they use 
the cross-subsidization, which is what we are trying to prevent in this 
bill, to run out small and midsize businesses, that is when we have a 
problem, particularly when denying access to newly emerging markets, a 
key to future expansion, job growth, and profitability for this 
country.
  For those reasons, I support this amendment. I also recognize my 
colleagues who wrote the bill, the Senators from New Mexico, 
particularly Senator Domenici. They are trying to address this issue. 
We put forward an amendment that we hope will strengthen the bill, help 
it out, one that doesn't negatively impact the electrical utility 
businesses, other than to say here is the area in which you can 
operate. Outside of that, this should be left to other businesses, 
particularly small and midsize ones, to allow them to grow.
  The amendment we put forward has broad support from the contracting 
community, electrical contractors, plumbing, heating, and mechanical 
contractors because they are feeling this onslaught. Most of my 
colleagues, I guess, have been contacted by the contractors, most of 
which are small to midsize businesses operating in communities 
throughout the country, that want this Feingold-Brownback amendment to 
be added to the Energy Policy Act of 2003.
  I recognize the work that the chairman and ranking member have put on 
this particular topic. We hope this amendment can be accepted because 
we think it strengthens the bill.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Madam President, I thank the Senator from Kansas for 
his excellent work. It is an excellent example of why this is so 
important. I appreciate his support in working with me on it.

[[Page 20127]]

  I ask unanimous consent that the Senator from Oregon, Mr. Wyden, be 
added as a cosponsor of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Madam President, I ask unanimous consent that a list of 
organizations in support of the amendment be printed in the Record at 
this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Support for Feingold-Brownback Amendment on Affiliate Transactions

       The following organizations support this amendment:
       American Association of Retired People.
       AFGI: Association of Financial Guaranty Insurors; ACE 
     Guaranty Corp.; Ambac Assurance Corp.; CDC IXIS Financial 
     Guaranty North America, Inc.; Financial Guaranty Insurance 
     Company; Financial Security Assurance; MBIA Insurance Corp.; 
     Radian Reinsurance Inc.; RAM Reinsurance Company; XL Capital 
     Assurance.
       American Iron and Steel Institute.
       Consumers for Fair Competition.
       Consumers Union.
       Electricity Consumers Resource Council (ELCON): A.E. Staley 
     Manufacturing Company; Air Liquide; Alcan Aluminum 
     Corporation; Anheuser-Busch Companies, Inc.; BOC Gases; BP; 
     Central Soya Company, Inc.; Chevron Texaco; Delphi Automotive 
     Systems; Eastman Chemical Company; E.I. du Pont de Nemours & 
     Co.; ExxonMobil; FMC Corporation; Ford Motor Company; General 
     Motors Corporation; Honda; Intel Corporation; International 
     Paper; Lafarge; MG Industries; Monsanto Company; Occidental 
     Chemical Corporation; Praxair, Inc.; Rockwell Automation; 
     Shell Oil Products; Smurfit-Stone Container Corporation; 
     Solutia Inc.; Weyerhaeuser.
       IBEW.
       MBIA Insurance Corporation.
       Municipal Electric Utilities of Wisconsin.
       National Alliance for Fair Competition, which includes: 
     Independent Electrical Contractors; Mechanical Contractors 
     Association of America; National Electrical Contractors 
     Association; Plumbing-Heating-Cooling Contractors-National 
     Association; Sheet Metal and Air Conditioning Contractors' 
     National Association; Air Conditioning Contractors of 
     America; Associated Builders and Contractors.
       National Association of State Consumer Advocates.
       Public Citizen.
       Small Business Legislative Council (90 small business trade 
     associations).
       U.S. Public Interest Research Group.
       Wisconsin Public Power, Inc.
       Sierra Club.

  Mr. FEINGOLD. Madam President, I am pleased that the ranking member 
of the committee, Senator Bingaman, is indicating positive remarks 
about this amendment as well. I wonder if he may wish to make some 
remarks in support at this time.
  Mr. BINGAMAN. Yes. Madam President, first, I ask unanimous consent 
that I be added as a cosponsor, if I am not already one, on the 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Madam President, I compliment the Senator from 
Wisconsin and the Senator from Kansas for proposing this amendment. In 
my view, it is offered in the same spirit in which the earlier 
amendment I offered related to mergers was offered, and also the 
amendment by Senator Cantwell related to market manipulation.
  I think all three of those amendments have somewhat the same purpose, 
which is to strengthen this bill, to ensure there are necessary 
protections for consumers, ratepayers, and for others who, in the case 
of the Senator from Kansas, pointed out there are many contractors in 
the private sector who feel an amendment such as this is essential if 
they are going to be able to compete and not face some type of unfair 
competition from companies that are part of holding companies that are 
owned by utilities or that also own utilities.
  Let me back up here and talk a little about the Public Holding 
Utility Company Act, because that is the basic issue that causes this 
amendment to come to the floor. As part of this bill, the proposal is 
that we repeal the Public Utility Holding Company Act. That was in the 
bill passed in the previous Congress--the repeal of that. I have 
supported that but I have only supported it if it were clear that we 
were replacing those authorities and those responsibilities for 
regulation and oversight at the Federal level with other effective 
authorities for oversight and regulation.
  My conclusion is that the Domenici substitute, as it now stands, does 
not put in place effective regulatory tools to ensure that at the 
Federal level we can prevent the abuses that caused the Public Utility 
Holding Company Act to come into existence in the first place.
  There is a very useful article that I commend to all of the Senate in 
today's business section of the Washington Post, written by Peter Behr. 
It is called ``Energy Monoliths Could Return; Law Limiting Companies' 
Reach Faces Repeal.''
  Well, the law that limits a company's reach that this article is 
talking about is the Public Utility Holding Company Act. As I say, 
there is general agreement that the act has become an anachronism; it 
is way too complex; that we need to modernize the Federal regulatory 
scheme in regard to utilities. So the Public Utility Holding Company 
Act should be repealed but it needs to be replaced with something that 
also constitutes effective regulation. Let me refer to the chart. I 
don't know if anybody can see it.
  This tries to rapidly describe what is involved with the Public 
Utility Holding Company Act, or PUHCA, jurisdiction. It basically says 
that for a company which owns, as the chart shows, other affiliates--a 
utility generating and marketing affiliate--there are real restrictions 
on what that holding company can do with regard to any other 
acquisitions of utilities. Essentially, you can acquire one more 
utility, or you can own one utility, and then if you own any more than 
that, you come under a very strict set of requirements that are 
presently in the Public Utility Holding Company Act. Those requirements 
should be repealed but we need something that is effective.
  This amendment tries to do that and would do it in an effective way. 
It accomplishes the same goal that I was trying to accomplish as part 
of--or one of the two goals I was trying to accomplish in the merger 
amendment I offered earlier yesterday, by requiring FERC to establish 
real firewalls around the utility affiliate of a holding company to 
prevent the assets of the utility from being used to prop up risky 
diversification ventures. That is, you cannot use the assets of the 
utility to support a contracting company, as an example, which is the 
kind of thing that the Senator from Kansas was talking about having to 
compete with.
  I think the language of the amendment is extremely clear. It makes it 
very clear that the Federal Energy Regulatory Commission shall 
promulgate regulations, shall apply in the case of a transaction 
between a public utility and an affiliate or associate company of the 
public utility--and that is what the chart shows--where you have a 
utility and another affiliate. It basically builds a firewall and gets 
at the issue I was talking about when I offered my amendment yesterday 
evening; that is, the public utility shall not cross-subsidize or shift 
costs from the affiliate or associate company to the public utility. It 
cannot encumber the assets of the public utility in order to prop up 
some other business. That is only fair as far as the ability of the 
other business to compete in the marketplace, but it is particularly 
important as security for the ratepayers of that public utility.
  There are an enormous number of examples. I went through several of 
them yesterday. Let me refresh people's memories. There are many 
examples in the last year--in recent months, in fact--where utilities 
have been getting into other activities and have encumbered the assets 
of the utility, and the ratepayers of the utility have been adversely 
affected.
  One example I mentioned yesterday, and I will mention it again 
because it does relate to Kansas, is West Star. It is the largest 
utility in the State of Kansas. It is owned by a holding company. West 
Star came under scrutiny last year because of problems that it 
encountered with nonutility affiliates.
  West Star had invested in a number of unregulated ventures, including 
a home security company, and the home security company did not do well. 
So the holding company, which owned

[[Page 20128]]

both the utility and the security company, shifted $1.6 billion of debt 
from its unregulated companies to the utility. It loaded these debts 
onto the utility, and then you have essentially the ratepayers of that 
utility left having to pay $100 million per year because of the 
activities of unregulated affiliates that had nothing to do with the 
utility itself.
  Some would say this is something the States should handle. The Kansas 
Corporation Commission began an investigation this last summer into 
this situation. The Justice Department began an investigation. The 
Federal investigation resulted in the indictment of the CEO of the 
company for bank fraud, and the investigation of the Kansas Corporation 
Commission, which is the State regulatory agency, resulted in a 
dramatic restructuring of the company to separate the utility from the 
unregulated companies of the holding company.
  Some would say: They solved it at the State level. Why should we be 
having any authority at the Federal level? They solved it at the State 
level for the period going forward, but they did not solve it prior to 
this arrangement being put in place and, accordingly, the ratepayers 
are paying $100 million a year to repay the debt that the utility has 
acquired because of this activity.
  One other example I mentioned yesterday that I will mention again is 
Portland General Electric. Portland General Electric was in the 
unfortunate position of having been acquired by Enron, and the Oregon 
Public Utility Commission required that a number of conditions be met 
before it approved that acquisition. That was helpful.
  Frankly, they acted wisely in requiring those conditions. But even 
that was not adequate to fully insulate that utility from the collapse 
of Enron and from the collapse of the other many businesses in which 
Enron was engaged. The fate of the parent company has had a very 
adverse effect on the ability of Portland General to gain access to 
capital markets. As I say, that is just one of many other examples that 
can be cited.
  This amendment Senator Feingold and Senator Brownback are offering is 
extremely meritorious. It is an essential part of what we ought to be 
doing if we are going to avoid getting back into a situation where 
cross-subsidy is permitted. We ought to have a bright line requirement 
that the Federal Energy Regulatory Commission ensure that cross-subsidy 
will not occur in these acquisitions and mergers. We owe that to 
ratepayers. We owe it to the public generally.
  I hope very much we will adopt this amendment. I commend the authors 
of the amendment for their proposal today.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, before I start, I ask the 
distinguished sponsor of the amendment how much additional time does he 
think he needs on his amendment. I am not pressing the Senator.
  Mr. FEINGOLD. Madam President, I do not expect a great deal of time 
at all. I would like the opportunity to respond to any comments the 
chairman of the committee might make.
  Mr. DOMENICI. Since it looks as if we will not be very long, does the 
Senator from New Mexico know if there is another amendment ready on his 
side since we are close to completing the debate on this amendment?
  Mr. BINGAMAN. Madam President, let me check with the Democratic floor 
leader. I will get an answer back on that question.
  Mr. DOMENICI. I thank the Senator very much.
  Madam President, I say to the author of the legislation, I very much 
appreciate the fact that during these difficult times when we are 
trying very hard to get so much done in a short period of time the 
Senator came to the floor, put an amendment down, and, in his typical 
manner, got to the point, and in short order is going to let the Senate 
vote.
  Frankly, what he is asking us to do is exactly the wrong thing for 
the situation that exists today in the energy markets. There is an 
article that was quoted from which is on all our desks:

       Energy Monoliths Could Return.

  It was quoted from, excepting on the second page there is an 
absolutely succinct paragraph that this Senator believes is totally, 
unequivocally correct. I quote three-quarters of the way down the 
paragraph starting with the word ``repeal'':

       Repeal could restore confidence in energy companies shunned 
     by shareholders after the Enron scandal and encourage badly 
     needed expansion of power transmission networks.
       From the financial market standpoint, repeal--

  And let me add ``of PUHCA,'' repeal of PUHCA--

     would be the single most important part of the energy bill. 
     It certainly is what investors are looking for.

  The problem with the amendment is that it probably will take the 
intent in that paragraph, the indication of what most probably will 
happen when PUHCA is repealed, and it will probably destroy it, wilt 
it, make it very vulnerable, and we will not get the result. The result 
is the need for huge injections of capital into the energy companies 
because of what has happened to them in the past 18 months.
  That is why it is good news that PUHCA is being repealed. That is why 
it is bad news when an amendment comes along and says: This is just a 
little 'ole amendment to make sure the electric companies keep their 
money where it ought to be, that they ought not invest it anyplace 
else, and that their boards of directors be governed by this statute, 
the kinds of issues that tie up the potential of a company that is 
involved in the utility business.
  We have already given FERC in this carefully balanced bill the 
enforcement power to make sure that the companies are properly 
invested, to make sure they are taking care of their business and of 
the stockholders' money and of the electrical business.
  We have actually said that is a power FERC has. This title already 
includes enhanced books and records authority for both State and 
Federal regulators to ensure that ratemaking bodies have all the 
information necessary they need for retail ratemaking, to ensure there 
is no cross-subsidization or improper commingling of utility and 
affiliate assets. That is what the authors of the amendment are worried 
about, that if PUHCA is not there--and remember, everybody has said so 
far, including my friend Senator Bingaman, we ought to get rid of 
PUHCA. It is an unfair holding down of these companies by an old law. 
Everyone wants to get rid of it except these two Senators want to say 
now if we do, let's go back and put some more handcuffs on these 
companies because we are scared, we are frightened, that they will do 
wrong.
  We are saying, if that is done, the very pluses, the positives, that 
come from the repeal are going to be negated because what is being done 
is not needed, and investment is going to be scared off.
  The Domenici underlying bill says that when we get rid of PUHCA we 
better put in something, although this job is principally the job of 
States. When Senator Bingaman read about the two cases, in both cases 
State commissions were involved in cleaning up the matter, but 
nonetheless, we have put in here the Federal Government, FERC, is given 
this authority in this particular area, because of PUHCA going away, to 
make sure there is no improper commingling of utility and affiliate 
assets.
  There is more. In fact, the underlying amendment also says, with 
reference to merger, acquisitions and dispositions, leasing, or other 
transactions:

       Will not impair the ability of the Commission or the 
     ability of the State commission having jurisdiction . . . to 
     protect the interests of consumers or the public.

  And:

       Will not impair the financial integrity of any public 
     utility that is a party to the transaction or an associate 
     company of any party to the transaction.

  So it even says when PUHCA is gone, we have all of these entities 
that will be worried about mergers and the like, but we put new 
language in that I just read, which says, nonetheless, if we are 
talking about merger, acquisition, or disposition, there are these 
additional powers.
  Frankly, I understand that an amendment which is, in fact, a bill--

[[Page 20129]]

that is the Domenici amendment--it is that big. I understand Senators 
and their staff could read it and they could say, well, yes, we get rid 
of PUHCA, and then somebody back home might tell them if you are 
getting rid of PUHCA you better be sure you do so and so, and this 
amendment could be given birth.
  If one looks at this carefully, they will find it did not come to the 
floor without the staff which worked on it helping the Senator make 
sure we know, when we get rid of PUHCA, we have to do something to be 
sure we have taken care of some problem children that might arise along 
the way.
  I want to repeat, this is not a little proposition. If it was, I 
would accept it because these are very good Senators. But I know if I 
took it, I would be sending the wrong signal to all of those companies 
across this land that have reviewed this bill very closely, some small, 
some large, some of them municipal, some of them co-ops. They have 
looked at it carefully and they know we are through with PUHCA. I do 
not want them to say, well, we got rid of one and they turn right 
around and make it difficult for us to do what we ought to do, what we 
can do, what we should do, to make sure we got all the assets invested 
in our companies in these faltering days in terms of resources.
  So I say to the two Senators, I wish that were not the case so I 
could thank them and accept it, but I honestly do not believe those who 
analyzed it did a careful job. No aspersions.
  A better way might be that we looked at it carefully, we watched out, 
and we were certain we protected the public and the consumers, those 
who will take electricity, and indeed the stockholders, so the kinds of 
things they are worried about will not happen.
  I do not know what it means, but the horror cases they are speaking 
of occurred while PUHCA existed. That is interesting, just as an 
observation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. First, I thank the Senator for the kind remarks. I do 
not believe we disagree with the goals with regard to the underlying 
amendment. In fact, I regard this, and I think Senator Brownback 
regards this, as a friendly amendment; that is, an attempt to make sure 
this dramatic change, the repeal of PUHCA, gets off the ground properly 
and does not, in effect, throw out the baby with the bathwater.
  My amendment does not attempt to repeal the repeal. I think if one 
was listening to the remarks of the Senator from New Mexico they might 
have gotten the impression we were sort of pretending we were repealing 
PUHCA and then putting it back in effect. That is not in any way, 
shape, or form what we are trying to do.
  We are trying to address a very specific problem the Senator from 
Kansas laid out very well, the cross-subsidization problem, when a 
utility holding company owns other affiliated entities and the problems 
that occur when those assets are moving back and forth in a way I and 
many people think threatens ratepayers as well as investors.
  Specifically, the Senator from New Mexico talks about the fact that 
there are those who are poised and ready to invest in the utility 
industry if changes are made, presumably such as the repeal of PUHCA. 
It is my belief that is exactly what our amendment helps do. I think it 
helps create a scenario that will make investors more positive rather 
than less positive.
  The Senator's argument about somehow our amendment will scare off 
investors is really a 5-year-old argument. PUHCA repeal, without the 
bottom-up regulation these ring-fencing provisions of this amendment 
provide, will continue to keep capital away. We do not have some kind 
of insurance for investors in utilities that the resources of those 
utilities will not be spirited away to these affiliates. Then they will 
not have the confidence in investing, and I want that investment to 
happen.
  Regulatory insulation, and that is what the Feingold-Brownback 
amendment does, will help restore investor confidence. It will actually 
help achieve the chairman's goal. Our belief, and our hope, is our 
amendment will help bring order to what is a beleaguered sector, not 
that it will wreak havoc.
  Utilities provide an essential public service. Our amendment 
insulates these utilities wherever they are in a corporate family. So 
what we are doing is providing a clear distinction of what entities are 
regulated or not.
  Now, if we are looking at investments, that is what we want to see. 
We want to know exactly what we are getting into. We want to know what 
our dollars are going to be used for and it helps restore investor 
confidence and consumer confidence, not the reverse.
  This is a good amendment. It has strong bipartisan support. There 
have not been a lot of Feingold-Brownback amendments over the years, 
even though I thoroughly enjoy working with the Senator. I think what 
it represents is a powerful commitment on the part of those of us who 
are working on this to protect small businesses in our State.
  I will not read again the list of the contractors and small business 
organizations that support this effort, but it is the kind of 
mainstream people that made my State. It is the kind of mainstream 
people that made the Chair's State. It is the kind of mainstream people 
that made the Senator from Kansas's State. They do not want to be 
driven out of business by utilities able to somehow move these assets 
back and forth through affiliates that are not properly regulated. That 
is a reasonable request.
  Even more importantly and in response to the Senator from New Mexico, 
we are trying to make sure investors feel comfortable so it will help 
the utility industry. The worst thing we can do is raise the specter of 
another Enron. The phrase ``cooking the books'' dominated our headlines 
a year ago, and our amendment is about making sure there will not be 
any accusations or reality of cooking the books when it comes to a 
utility and its affiliates, that they will have two separate sets of 
books.
  Yes, the Senator's underlying amendment is good. It allows FERC to 
look at the books. If they look at the books and there are no standards 
or rules about keeping the entities separate, what is the good? There 
need to be some teeth in it. That is what our amendment does.
  I suggest this is a reasonable, fairly modest amendment that will 
make the Domenici substitute even better. I urge my colleagues to 
support it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Madam President, I will speak briefly to the Feingold-
Brownback amendment.
  There is the illusion, or at least the concern, on the part of some 
of our colleagues that the title we have before the Senate in S. 14 
somehow creates a type of regulatory gap that I don't believe exists. 
The chairman of the committee, in his thoughtful processes that brought 
us to this amendment and the time he has spent working on it with 
staff, would agree it does not exist.
  Certainly Senator Feingold and others have reason to be concerned, as 
do I. My constituency, my ratepayers of Idaho, for a period of time 
spent a good deal more than they should have on their electrical costs 
because of the dysfunctional markets in the State of California. Those 
dysfunctional markets occurred with all of these laws in place that we 
are talking about now changing. What is most important to recognize is, 
those who misused the market are now suffering. Those who misused the 
market are now being prosecuted. Those who misused the market to line 
their pockets, I trust, are having their pockets stripped of ill-gotten 
gold.
  Why? Because our President has a Corporate Fraud Task Force, we have 
a little organization called the FBI, we have the Federal Energy 
Regulatory Commission, the Securities and Exchange Commission, the 
Commodity Futures Trading Commission, and, yes, even the U.S. Postal 
Service and the U.S. Attorney's Office that seek to look at and have 
found what they allegedly suggest is postal fraud.

[[Page 20130]]

  Whether it is Enron, whether it is Dynegy, whether it is Reliant or 
whether it is El Paso Corporation, time and time again, and currently, 
many of the major operatives within those organizational structures are 
being brought before the Federal justice system and will be or are 
being prosecuted because of what they are now alleged to have done or 
are accused of having done as it relates to wire fraud, conspiracy, 
manipulation, round-trip trading, all of those things we suggest ought 
not happen.
  What we have done in this title appropriately protects the consumers 
of this country, but, as important, we protect the capital that comes 
to this market to be invested, to create the generational capabilities, 
the transmission capabilities, the pipeline capabilities, all the 
things we need to interlock an energy system in our country and to 
continue to make it as reliable as it has been in the past and as 
reliable and abundant as it should be, hopefully at the least cost to 
the consumer.
  Clearly, the consumer got gouged. My consumers got gouged. There was 
ill-gotten gold. We darned well ought to strip it from the pockets of 
those who were out to steal it from the consumer. Tragically enough, 
that stealing was going on long before this amendment, under the 
current laws that some argue we ought to keep in place, 1930 laws that 
have rendered themselves relatively obsolete in a modern-day energy 
system.
  We are asking that we have the right enforcement in place. We have 
given FERC the authority it ought to have within the confines and the 
limitations in which we believe it ought to operate. There is no 
regulatory gap. Any reason to add to what we have done simply 
frustrates the multibillion-dollar market, the revenues that will come, 
the investment that will be created, toward once again creating the 
finest electrical and energy market in the history of the world. That 
is what we ought to have. That is what we need. Without that, our 
investors and our economies look elsewhere, beyond the bounds of our 
country where they can find stability of economy, stability of resource 
and, most importantly, an abundant supply of energy.
  In the absence of energy, in the absence of an abundant, least cost 
supply of energy, our economy is in trouble. If our economy is in 
trouble, most assuredly our men and women who want to find work in that 
economy are oftentimes without work. We believe this is a full 
employment bill that will create literally hundreds of thousands of new 
jobs because of the stability it will bring.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, I was informed a while ago by my good 
friend, the whip, Senator Reid, that as soon as we finish this 
amendment--and I think we are finished; I am not quite sure whether the 
proponents have finished--Senator Byrd wanted to speak. I ask Senator 
Byrd, since he is here, if that is the case. And then I ask if I could 
speak following Senator Byrd, if he has no objection. I ask that after 
the distinguished Senator Byrd completes his remarks, the Senator from 
New Mexico be recognized.
  Mr. REID. Reserving the right to object--and I shall not object--the 
Senator has that right. We are in the process of winding down debate on 
the Feingold amendment. After Senator Byrd and the Senator from New 
Mexico, the manager of the bill, we would be ready to vote on not only 
the Feingold amendment but the two amendments that have been offered by 
the Democratic manager of this bill.
  I suggest, because these were debated yesterday, we should have 10 
minutes equally divided prior to a vote on each of the Bingaman 
amendments. While Senator Byrd is speaking, maybe the staff could 
prepare a unanimous consent agreement to meet these steps that we need 
to take to complete votes on these three amendments. We would at that 
time be ready to offer another amendment.
  Also, if Senator Byrd speaks for half an hour or 45 minutes, then we 
will have these votes occur at the same time as Mr. Rumsfeld is here. I 
don't know if that is what people want. At least half of the Senate 
will be going to the Rumsfeld meeting--maybe even more. It is up to the 
Republican leader, of course, what he wants to do with the Secretary of 
Defense. But whatever the wish of the leader is, we will certainly go 
along.
  We are ready to vote on these three amendments.
  Mr. DOMENICI. Madam President, if we could reduce the debate time 
before each amendment. We don't need 10 minutes; 5 minutes would do.
  Mr. REID. I would be happy to do that, although I have conferred with 
Senator Bingaman. On one amendment he needs 5 minutes, and on the other 
amendment he could use 2\1/2\ minutes.
  Mr. BINGAMAN. In response, I don't believe I will use 5 minutes; I 
will probably use closer to 3 minutes, but I would like to have the 
ability to go on if I get warmed up.
  Mr. DOMENICI. Let's prepare the unanimous consent request on all 
three, with 5 minutes each, 10 minutes equally divided.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, I want to bring this debate to a 
close, but I want to quickly respond to a couple of comments from the 
Senators from New Mexico and Idaho.
  When the Senator from New Mexico was making his comments he talked 
about the fact the State commissions, public service commissions, and 
others would be able to sort of take care of these kinds of problems 
that would exist in a post-PUHCA repeal era. I don't think that is an 
adequate answer.
  The fact is, as I mentioned in my opening remarks, in many cases 
these are interstate utility entities, and it is that very fact that 
has made it so difficult, prior to PUHCA, for there to be any 
appropriate regulation at all. So we do need some kind of appropriate 
law that homes in on this problem of utility holding companies and 
affiliates and the cross-subsidization problem that exists. That is the 
first point I want to make, that the State level is simply not going to 
do it.
  The second point relates to the comments of the Senator from Idaho. 
The premise of the remarks of the Senator is that somehow my amendment 
undoes the repeal of PUHCA. It does not do that. Our amendment is 
necessary and helpful and good for investors and consumers and 
ratepayers and small business, whether PUHCA is repealed or not. The 
argument is a red herring. The argument has no relationship to the 
issue of whether these provisions are needed.
  Maybe we could put it this way: The Senator from Idaho believes that 
a 1933 law known as PUHCA is no longer the right law for this time. We 
are proposing what we believe to be the appropriate, measured, consumer 
confidence and investor confidence provision for 2003, not 1935. So we 
are accepting in the amendment the repeal of PUHCA, but we are adding 
this provision that is necessary in 2003, not 1935.
  The only other alternative, if we do not do at least our amendment, 
is we are going to be returning to the environment that we are just 
coming out of, the environment that everyone admits was a disaster for 
consumers and that it destroyed consumer confidence and investor 
confidence because of the recklessness and the cooking of the books 
that went on all over this country, particularly in the utility 
industry.
  We have to make sure what we do here does not undercut the confidence 
we want to increase for consumers and for investors. That is the 
purpose of our amendment. We are not trying to undo the chairman's 
primary purpose of his amendment.
  I yield the floor. Assuming that is the end of the debate, I yield 
the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I thank the distinguished Senator from New 
Mexico. I thank him for the knowledge he brings to the Senate on many 
matters. For these several years I have worked with him on the 
Appropriations Committee, he has shown himself to be one of the most 
knowledgeable persons on that committee

[[Page 20131]]

and, with respect to energy, he has shown time and again that he is 
well equipped to enter into debate and to help to form good 
legislation, better legislation, or the best legislation.
  I have always found him to be one who is easy to work with. I enjoy 
working with him and I compliment him for the time he has put in on 
this matter that is before the Senate. He arrives at his conclusions 
after due and deliberate examination, and he is a first-class 
legislator.
  Mr. DOMENICI. Madam President, I say thank you very much, Senator 
Byrd. I greatly appreciate your remarks. It is always my pleasure to be 
serving with you.
  Mr. BYRD. I thank the distinguished Senator. He has distinguished 
himself in many fields.
  Mr. DOMENICI. Thank you.
  Mr. BYRD. Madam President, on pleasant summer days, such as these, I 
doubt that the average person worries too much about the intricacies of 
energy policy. However, energy is the life's blood of our economy. 
Obviously, a comprehensive energy policy is a critical underpinning for 
a viable, strong nation.
  And, there are real and growing concerns about the Nation's energy 
security--about our teetering economy and about our growing dependence 
on foreign oil. Coupled with these is an increasing need to protect the 
environment and address global climate change. But instead of looking 
for balanced and comprehensive solutions to our critical energy 
problems, this administration drags its feet and deals with our energy 
challenges by meeting behind closed doors with select corporate 
contributors.
  As is often the case, this White House offers shortsighted, silver 
bullet solutions. But, in fact, there are just no silver bullet 
solutions to a sound and comprehensive energy policy for the future. 
There is no Lone Ranger approach to energy. There is no John Wayne 
approach to energy. We have to consider the worldwide energy supply and 
demand. We must be ready to invest in a range of policies, 
technologies, resources, and institutional structures that can prepare 
us for the future.
  During the 2000 election cycle, the Bush campaign claimed that the 
creation of a national energy strategy was one of its most important 
priorities. But what they meant by that may not be what many people 
thought they meant. Even as candidate Bush traveled the Presidential 
campaign trail, the issue of energy often shared the stage with George 
W. Bush and Dick Cheney, in part because both candidates were formerly 
business executives with ties to the energy industry. My own home State 
of West Virginia, where energy issues are very important, played a 
critical role in pushing the Bush-Cheney team over the top in the 
electoral college and handing the current administration the White 
House.
  But, after his election, the President seemed more interested in 
seeking the advice of his corporate friends than developing a balanced, 
comprehensive, far-reaching energy policy. It may be illustrative here 
to review the background of some Bush administration officials. Vice 
President Cheney served as the CEO of Halliburton. Secretary Norton has 
lobbied for the oil, gas, and auto industries. The President's Chief of 
Staff has served as the president and CEO of the American Automobile 
Manufacturers Association. The U.S. Trade Representative, Robert 
Zoellick, has served on Enron's Advisory Council. Even National 
Security Adviser, Condoleezza Rice, was honored by Chevron with a 
supertanker named after her. With such close connections to big 
corporate donors, one has to wonder about who really influences the 
energy agenda of this administration.
  Upon taking office, the Vice President led a task force that hammered 
out the new administration's energy strategy for the Nation. After 
months of work, the National Energy Policy Development Group issued its 
report in May 2001. It was praised in some camps, criticized in others. 
The criticism arose because executives from Enron and other big 
corporate contributors played a major role in the recommendations of 
that task force. To many, the task force recommendations for a national 
energy policy appeared to be little more than an industry wish list.
  When the General Accounting Office and outside groups requested basic 
information about the Vice President's task force, the White House 
claimed executive privilege. Throughout the court battle which ensued, 
the Bush Administration repeatedly claimed that the separation of 
powers and executive privilege prevented them from releasing pertinent 
documents. As a result, the credibility of the White House energy 
strategy development is certainly strained, to say the least, 
especially with regard to the oil industry.
  I have been particularly concerned about our continued reliance on 
foreign oil and our lack of commitment to developing domestic fuel 
diversity. Tackling that growing problem requires a serious and multi-
faceted commitment, involving cooperation and coordination among many 
players. But what the President seems to be proposing can be pretty 
much boiled down to drilling for oil in the Arctic National Wildlife 
Refuge, and exploiting the oil reserves under the hot sands near the 
Tigris and Euphrates Rivers, in the Fertile Crescent--modern day Iraq.
  U.S. domestic oil production peaked in the early 1970's, and, since 
that time, our oil demands have far outstripped our supplies. But 
instead of figuring out how to disentangle ourselves from foreign oil 
dependence, the Bush administration seems to be intent on sinking our 
energy fortunes deeper and deeper into the hot sands of old 
Mesopotania--the hot sands of the Middle East. What is this 
administration's total energy agenda? Is oil the only card in the 
energy deck which the administration will play?
  It certainly appears so. And one has to wonder just how that card is 
being played. As the world witnessed in the war in Iraq, the 
administration was much more interested in protecting, defending, and 
developing Iraq's oil resources than it was in protecting Iraq's 
cultural or social resources. Early on in the war, coalition forces 
were ordered to make it a priority to protect the oil fields. Upon 
their entry into Baghdad U.S. troops were ordered to surround and 
protect Iraq's oil ministry. Despite clear warnings, coalition forces 
left Iraq's priceless museums and other government institutions 
defenseless. On top of that, U.S. forces failed to protect nuclear test 
facilities. This is especially puzzling in light of the 
administration's often stated concerns about dirty bombs and the 
pilfering of nuclear material by terrorists. So where are our 
priorities? What is the United States really up to in Iraq?
  If the United States were really intent on developing a smart, 
commonsense oil policy, we would be taking additional measures to 
better balance our supplies from other nations; we would be carefully 
using our strategic reserves to hedge against future foreign 
manipulation; we would be promoting industrial energy efficiency, and 
we would be nurturing all forms of alternative sources for our energy 
and transportation needs, including coal, renewable, and biomass-based 
sources.
  I have proposed my own commonsense proposal to help mitigate the 
growing global dependence on oil supplies from volatile regions. The 
United States encourage the transfer of our own clean energy 
technologies to other nations, especially developing countries who will 
increasingly be buying into the same finite oil markets that we are 
purchasing from. Such efforts are critical in order to satisfy our 
energy security needs as well as to address related economic, job 
creation, trade, and environmental objectives. The demand for oil from 
other countries will be increasingly fierce, and we have only a narrow 
window of opportunity ahead. Last year, the administration, at my 
urging, released a plan for just such an initiative intended to help 
open international markets and export U.S. clean energy technologies. 
However, little, if anything, has been done to implement it. Where have 
we seen this strategy before? The answer is, we have seen it virtually 
everywhere with this administration--from

[[Page 20132]]

homeland security to No Child Left Behind.
  Furthermore, the administration's Fiscal Year 2004 budget confirms 
some of my worst fears. When it comes to domestic issues, the plan of 
administration officials these days is about outsourcing, downsizing, 
reorganizing, reducing, cutting, slashing, slicing, dicing, and carving 
up the Federal Government. It is a tailor-made infomercial for the 
benefit of all-too-receptive corporate donors.
  The administration's energy budget is a sham, and its energy program 
requests are no different. The Department of Energy cut $20 million for 
the Clean Coal Power Initiative. The Department of Energy's oil and gas 
research program was cut by more than 50 percent. In order to squeeze 
enough dollars out of the budget for the President's new hydrogen 
initiative, other critical energy programs were severely cut. Yet the 
administration's hydrogen program is years away and cannot serve as a 
substitute for conservation, energy diversification, or other key 
energy programs. Moreover, a proliferation of ``new'' initiatives have 
been announced by this administration that are purported to solve our 
energy needs, especially for fossil fuels. We have the hydrogen 
initiative, a carbon sequester program, FutureGen, a national climate 
change technology initiative, and more. My question is: Can anyone 
explain how these ``new'' initiatives will work together? Where is the 
money to provide for all of this without compromising other important 
efforts? The fact remains that there is no major increase in real 
funding or commitment for energy programs, just a proliferation of 
empty words from this administration. I do not believe we can treat our 
energy illnesses with the administration's current budget prescription.
  In the 107th Congress, both the House and Senate actually passed 
comprehensive energy policy bills. After lengthy debate in conference, 
important progress was made. A number of compromises were struck, but 
in the end the conferees could not reach a final agreement. This should 
come as no surprise.
  In fact, this administration made no real effort to help get a 
comprehensive, national energy strategy passed. President Bush 
suggested that energy was a cornerstone of his administration's agenda, 
but what did he do during the energy conference in the 107th Congress? 
Nothing. Oh, his rhetoric may have sounded good on the campaign trail. 
He tried to talk a good game, but when it counted, the administration 
took a decidedly hands off approach.
  This new Senate Energy bill, S. 14, the House Energy bill, H.R. 6, 
and the White House's interest overall are intended to cater to the 
administration's friends in industry. That is it. That is all. In its 
present form, these energy bills are no victory for our country. They 
are a victory for special interests and a text-book example of our 
inability to set a long-term energy policy course. Now, we are on the 
brink of another important opportunity squandered. While there are some 
solid trees planted in the bill, this legislation will not produce the 
diverse energy orchard we must have to meet our needs down the road. 
The President and the Republican-controlled Congress are simply not 
prepared to make the tough choices that the Nation needs for a viable, 
long-term energy policy. How long will we wait?
  The President would love a one-day Rose Garden ceremony and a 2004 
campaign press release. But, given this administration's track record, 
an energy bill would simply be another empty soapbox for this President 
to stand on, as he has already demonstrated with the education soapbox, 
the farm legislation soapbox, Afghanistan soapbox, and the Homeland 
Security soapbox, and other soapboxes. The Congress has passed bills 
and supported the administration's rhetoric, but then the necessary 
resources to carry them out never materialize. This is the same fate 
that awaits an energy bill this session.
  It takes leadership and it takes hard work to move forward in a 
responsible, balanced, and intelligent way on energy policy. Yet this 
administration makes do with a cheap knockoff. It looks like the real 
thing, but it is a fraud and a fake. It is much like cotton candy. At 
first glance, it may look good, but there is just no nutrition. In 
reality, it is just puffed air.
  In the last 5 years, I have worked hard to help develop a balanced 
and bipartisan package of provisions to advance our national energy 
policy goals--provisions that could go a long way toward addressing 
both the near- and long-term energy needs of our Nation, while also 
providing numerous benefits both at home and abroad. These provisions 
garnered bipartisan support in the Senate Energy bill in the 107th 
Congress, including clean coal, climate change, international 
technology transfer, and other important provisions. Together, these 
initiatives represent a bold new enterprise--stepping stones along a 
21st century energy pathway.
  Yet the administration seems intent on just blocking many of these 
bipartisan ideas. For example, in a May 8, 2003, statement on the 
Senate Energy bill, the White House stated, in part:

       The Administration is not convinced of the need for 
     additional legislation that would attempt to limit or direct 
     U.S. global climate change, and will oppose any climate 
     change amendments that are inconsistent with the President's 
     climate change strategy . . . we urge the Senate to allow . . 
     . the President's strategy to go forward unimpeded.

  Well, I continue to ask, just what is the President's strategy--
cotton candy?
  Last session I introduced legislation with Senator Ted Stevens of 
Alaska that would allow the United States to deal more easily with the 
complex issues involved in climate change. The amendment to be offered 
by Senator Bingaman is based on last year's Senate-passed provisions. 
It would create a comprehensive strategy based on credible science and 
economics to guide American efforts to address climate change issues in 
our own backyard and around the world. This amendment also would 
establish a major research effort to invent the advanced technologies 
that we will need to effectively reduce greenhouse gas emissions that 
contribute to global warming. We must develop a commonsense package of 
technology, science, policy and other market-based measures to address 
this growing global problem. And it is growing. The question is what 
are we waiting for?
  Specifically, the Bingaman amendment includes provisions that would 
commit more than $4 billion during the next decade to vastly expand 
U.S. research into technology that could help to address the problem of 
global climate change. The amendment provides for the creation of a 
more focused administrative structure within the Federal Government, 
including an office in the White House to coordinate and implement a 
national climate change strategy. We cannot continue to just ignore 
this problem.
  This amendment does not mandate a reduction of emissions by American 
companies. Instead, this package places the Nation on a commonsense 
glidepath that is both achievable and sustainable. It provides the 
framework to address the long-term goal of stabilizing atmospheric 
greenhouse gas concentrations by working with other nations, while 
leaving the actual technology and policy decisions to energy experts 
and the marketplace.
  China, Brazil, and India, among other states, will soon surpass the 
industrialized world in emissions of greenhouse gases. It is important 
that we work in coordination with these nations to reduce their 
emissions at an early stage. American know-how, technology, and ideas 
can help to lead to the implementation of a range of marketable clean 
energy technologies, not just in the United States, but also around the 
world.
  It is time for real action. A cherry-picked energy plan based on 
soliciting big industry campaign contributions is a bankrupt policy. It 
takes this Nation nowhere, and it puts our future at risk.
  We cannot continue energy programs and budgets if we ever hope to 
meet our long-term needs. We cannot continue forestalling the 
development of a long-term energy strategy with a phantom plan. The 
Nation is at a turning point. Our energy policy needs must stop being 
dominated by a crisis management policy. We must work to

[[Page 20133]]

enact appropriate energy legislation so that we avoid the consequences 
of our long failure to respond. We cannot wait for the next energy 
crisis or the next spike in natural gas prices--or the next California 
electricity debacle. We cannot just go out and seize another oil rich 
country in order to solve our energy problems. We must enact bipartisan 
energy legislation that will deliver a thoughtful and reasoned energy 
package.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. Madam President, I hope we are moving toward the 
opportunity to vote shortly. But, in the meantime, I cannot resist 
making a few comments.
  I don't see it at all the way the Senator from West Virginia has 
described it. Over the last couple of years, I have worked very hard to 
bring an Energy bill before the Senate. I believe we have an Energy 
bill before us that is very broad, that is very encompassing, and that 
is very balanced. That is what we have needed to do.
  We have been working now for 2\1/2\ years, and we generally have not 
been able to get over the obstacles to be able to get it completed, and 
I think I understand why. But it is time for us to decide: How 
important is it for us to have an energy policy?
  The first thing this administration came up with when it came into 
office was an energy policy with a direction, and we have been fooling 
around with it ever since.
  Last year, we couldn't even get it through the committee. We had to 
go right to the floor. We went to the conference committee and worked 
very hard. We did not succeed.
  But this is a balanced approach. We are talking about an opportunity 
to have conservation, which is one of the things we need to do in 
energy. We are talking about the opportunity to have alternative 
sources of energy, which we will come to over a period of time.
  I remember very much a number of years ago somebody coming to Casper, 
WY, talking about energy, saying: We have never run out of energy 
because we have always found a new source. Well, we probably will, but 
we need to be doing that in research.
  The bill involves research in a variety of different areas that 
relate to energy. What else could you do besides research? There is a 
very great emphasis on hydrogen in this administration and doing 
something that will move us to a different kind of energy opportunity. 
Coal might be the basis for that opportunity. It would be much more 
economical to move.
  Lots can happen in the future. What we are faced with doing in this 
bill relates to the fact that the energy industry has moved faster than 
we have moved. This is not a matter entirely of setting a future; it is 
a matter of catching up with what has already been done. And much of 
that is evidenced in the electrical industry.
  Years ago everything we did was designed to have an energy company 
and an electric company that had their own distribution. They did their 
own generating. It was all in one area. That is not the case anymore. 
Thirty percent of electrical energy is generated by merchant 
generators. That energy has to be moved from the generator to the 
market. It is quite a different situation. It is already there, yet we 
seem to resist talking about it. We seem to resist accepting it. We 
seem to resist making that an advantage for us rather than a problem, 
and we have an opportunity to do that.
  One of the other issues that is emphasized is domestic production, of 
course. It has already been pointed out that some 60 percent of oil 
comes from overseas. We are talking about the possibility of shortages 
of natural gas. I can tell you something: We have a lot of natural gas 
right here in this country, much of it in the west where I am from. We 
could be producing a great deal more if we had the policy to go ahead 
and do that, if we had the opportunity to have multiple use of lands to 
protect the environment and produce at the same time, to be able to 
have the transportation to move it to the market. These are the things 
that are there and available. That is what this bill is about.
  To suggest that this bill does not have any substance to it is simply 
not right. It is a good excuse if you don't want to vote for it. But 
the fact is, there is substance. The fact is, it does move us forward. 
The fact is, we need to move it on.
  We are talking now about an electric title, which I think is crucial. 
We were just upstairs talking about what energy does for jobs. Remember 
the economy started to turn down in the year 2000. We have been working 
at all kinds of things ever since. Here is one that has probably more 
of an immediate impact to jobs than anything else we could do, not only 
in production but, of course, it has an impact on all business 
activities.
  How important is electricity to us? Everything we do--travel, 
gasoline, natural gas, all these things. So I guess it is sort of 
frustrating to hear there is no basis to this, that we don't need to 
hurry doing this. Yet the fact is, it is probably one of the most 
needed things we have had for a number of years. And yet we continue to 
find excuses for not going forward.
  I hope we can move. We can complete this bill this week. We have 
already discussed almost all these items for a long time. It is time to 
move, and I hope we do.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. Madam President, I commend Senators Cantwell and Bingaman 
for their amendments to the electricity title that will, in effect, ban 
all forms of market manipulation and add important merger provisions. I 
am terribly disappointed that the Cantwell amendment failed by a vote 
of 48 to 50. She did an extremely fine job of laying out this program. 
I am sorry it didn't pass. It should have. I think there will be some 
Senators who voted against her amendment who will regret having done 
so.
  We know that the energy crisis in California in 2001 resulted from 
market manipulation and price fixing. People of the State of Nevada 
were severely hurt by this manipulated electricity market, as were 
consumers all over Western States.
  The State of Nevada has just completed the most contentious 
legislative session in the history of the State. The Governor of the 
State, after the regular session ended, had to continually call special 
sessions. I don't really know how many he called--two, three, four, 
five--but they were there for a long time. Finally, because nothing 
could be completed, the Governor filed a legal action with the Nevada 
Supreme Court. After the Supreme Court acted, action was taken. The 
provision in question that went before the supreme court is whether the 
Nevada Legislature had to pass tax increases by a two-thirds vote. The 
Nevada Supreme Court said no and they said yes, but regardless of that, 
I spoke to the majority leader from Nevada, Bill Raggio, today. He said 
he made the determination that it was going to pass by two-thirds, and 
both the assembly and the house ultimately did that.
  The reason I mention the difficulty they had is because of the 
tremendous burden the State of Nevada had in not having enough revenues 
to meet the projected deficit, $1 billion in the State of Nevada, much 
of which was caused by the problems that developed in California with 
manipulating the energy prices there.
  The State of Nevada had other problems: unfunded mandates that we 
have passed on to them with homeland security and Leave No Child 
Behind, which has left a lot of kids behind. The fact is, the 
electricity rates had a lot to do with that very difficult legislative 
session. That session took a long, long time to complete. Since 1999, 
electricity rates in the Las Vegas area have increased by more than 60 
percent. Over the same period, natural gas prices across Nevada have 
doubled. It is a sad state of affairs that some seniors, especially, 
and low-income families in Nevada are being forced to go without 
prescription drugs or cut back on food in order to pay their 
electricity rates. That is a fact.
  The bills that come from these increased electricity rates are a real 
burden, as the Senator from Washington,

[[Page 20134]]

Ms. Cantwell, mentioned today. She read specific letters from people in 
the State of Washington where these prices were preventing them from 
getting proper medical care and having the ability to pay their rent. 
The same applies, of course, in Nevada.
  These wild price increases in electricity were painful to homeowners. 
They also made it hard for businesses to expand or make long-term 
plans. Nevada consumers were being asked to pay for the same very 
expensive long-term contracts negotiated by utilities in 2001 at the 
time of the California energy crisis. It cost Nevada ratepayers 
hundreds of millions of dollars.
  Nevada Power, the power company that serves the Las Vegas area and 
southern Nevada, has flirted with bankruptcy. It is rated at junk bond 
status where in the past it was one of the strongest utilities in 
America. What does this junk bond status mean? It means the cost of 
money for the utility to purchase power for Nevada is very high.
  The weakened financial condition of our utility is a burden to our 
ratepayers. I can remember during some of this time that I had to call 
the Governor of California to see if there could be some arrangement 
made so the power that the people of the State needed coming from 
California could be provided. I had to have a signoff from the Governor 
of California. This was difficult. They were in deep distress but their 
distress was passed on to Nevada.
  The weakened financial condition of our utility is a burden to our 
ratepayers and the taxpayers of the State of Nevada. After Enron was 
exposed for its unfair and unethical practices, whether it was Fat Boy 
or Get Shorty, all these practices had an impact in Nevada. After these 
unfair practices were exposed, a subsidiary of Enron stopped delivering 
electricity to Nevada Power because of its weakened financial 
condition. Then adding insult to injury, this Enron subsidy sued Nevada 
Power for the losses it might incur if it couldn't sell the power at 
the contract price.
  In a recent ruling, FERC upheld the contract the utility signed at 
these exorbitantly high prices. Again, our ratepayers were not 
protected from abuses during the California energy crisis. It is not 
consistent with rational thought that FERC could do this but they did 
it.
  As the western energy crisis and Enron's collapse made clear, 
electricity markets are ripe for manipulation unless clear safeguards 
are put in place and companies are held accountable. The electricity 
title should ban all forms of market manipulation and contain concrete 
penalties for those that break the rules. The electricity title should 
strengthen FERC's authority to review public utility mergers for 
electric and gas--there will be an amendment that will focus just on 
gas in this regard--holding company mergers and generation assets, and 
ensure any consolidations are in the public interest.
  I extend the appreciation of the entire Democratic caucus for the 
work done by the manager on our side, Senator Bingaman. Senator 
Bingaman is an intelligent Senator. He is experienced. He has done 
everything he can to help this bill be a bill that is a good bill which 
is indicated by the tremendous amendments he has filed that we will 
vote on in the next few hours.
  Last year Democrats worked with Republicans to pass energy 
legislation by a vote of 88 to 11. This vote was to strengthen our 
national energy security, safeguard consumers and taxpayers, and 
protect the environment. The heavy vote is an indication that we were 
able to accomplish that.
  That vote came after 24 hours of debate over the course of 8 weeks, 
and only after the Senate dispensed with 144 amendments.
  Madam President, the distinguished Senator from Tennessee, the 
majority leader, has said we have been on this for 16 days. He has to 
say that with tongue in cheek. Many of those days have been Fridays and 
Mondays, when everyone knows when you turn to a bill for a day or two 
and it is a Friday or Monday, that is like turning to nothing. It is 
filler. Nothing happens. Most of those days the managers weren't even 
here. They said we are going to energy on short notice. The 16 days the 
distinguished Senator from Tennessee talked about really is more like 7 
or 8 days.
  As we know from past experience, the effort to craft comprehensive 
energy policy involves working through a series of complex issues. We 
are currently working through one of the most complex issues right now, 
electricity policy. These issues take time to debate, and we have a 
duty to the American consumer to ensure that we carefully consider what 
our energy policy will look like in the future. We have spent 
significantly less time debating the Energy bill this year. We have 
considered 42 amendments and held 15 rollcall votes. We have spent less 
than 7 days on this bill, considered 102 less amendments, and conducted 
20 less rollcall votes than last year. There are a number of issues 
outstanding: Electricity; global warming; renewable portfolio standard; 
CAFE standards, on which we have debated two amendments but others need 
to be considered; hydroelectric dam relicensing; nuclear energy; 
natural gas; energy efficiency incentives; wind energy; carbon 
sequestration; exploration of the Outer Continental Shelf, and the 
energy tax package, just to name a few.
  These amendments offered on this Energy bill dealing with electricity 
are not specious amendments, they are substantive amendments. The 
Cantwell amendment vote was 48 to 50. Without arm-twisting on the other 
side, Senator Cantwell would have won. These are serious amendments 
people wish to offer. They are not single amendment issues. I expect 
there will be several amendments on each subject. We ended with a good 
product last year when we let the Senate work its will on the 
legislation. We need to spend adequate time this year to get a similar 
result.
  I see the Senator from Florida on the floor. My understanding is that 
he wishes to speak.
  Mr. THOMAS. I wonder if it would be possible to propound this 
unanimous consent request.
  Mr. REID. Madam President, the Senator has been here all day. It is 
my understanding that the Senator wishes to speak; is that right?
  Mr. NELSON of Florida. Yes, for perhaps only 3 or 4 minutes.
  Mr. REID. I thought the Senator had longer to speak.
  Mr. NELSON of Florida. I will accommodate the leadership. Whatever is 
the pleasure of the leadership.
  Mr. DOMENICI. Madam President, the Senator has no right to decide who 
speaks. They have to seek recognition.
  Mr. REID. Madam President, as I have said several times during the 
day, and yesterday and the day before, I have the greatest respect for 
the Senator from New Mexico. But the Senator from Florida, who is 
gracious and said he would take just a few minutes, has a right to 
speak as long as he wants to before we have votes on this.
  Mr. THOMAS. The Senator from Wyoming was on the floor before he was, 
however.
  Mr. REID. I have the floor.
  Mr. DOMENICI. The Senator cannot dole out the time. He has no right 
to dole the time out to other Senators, Madam President.
  Mr. REID. Madam President, I have the floor, and I have the right to 
speak about anything I want to speak about. The fact is, the Senator 
from Florida has been here several times today.
  Mr. DOMENICI. Madam President----
  Mr. REID. I have the floor, Madam President. I have the floor.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. The Senator from Florida has been here several times during 
the day. He has a right, prior to our entering into this unanimous 
consent agreement, to speak for as long as he wants. He said he chooses 
not to do that, and that is in keeping with the courtesy that this 
junior Senator from Florida extends to everybody. I want to make sure 
he doesn't have hurt feelings and that he has the opportunity to speak. 
He knows the rules of the Senate and he has a right to speak if he 
wishes.
  Having said that, I am willing now to have this unanimous consent 
agreement proffered.

[[Page 20135]]


  Mr. THOMAS. Madam President, I ask unanimous consent that there now 
be the following debate in relation to the listed amendments: Bingaman 
No. 1413, 10 minutes equally divided in the usual form; Bingaman No. 
1418, 10 minutes equally divided in the usual form. I further ask 
consent that following the debate, the Senate proceed to a vote in 
relation to amendment No. 1413, to be followed by a vote on amendment 
No. 1418, to be followed by a vote in relation to the Feingold-
Brownback amendment No. 1416, provided there be 2 minutes of debate 
equally divided prior to each vote.
  Mr. REID. Madam President, reserving the right to object, I ask if my 
friend, the distinguished Senator from Wyoming, would modify his 
unanimous consent request to allow the Senator from Florida, prior to 
this kicking in, to speak for up to 5 minutes.
  Mr. THOMAS. I have no objection to that.
  The PRESIDING OFFICER. Is there objection?
  Mr. BINGAMAN. Madam President, not wishing to object, I just indicate 
that I did not intend to ask for 10 minutes of debate on each of my two 
amendments, and then in addition ask for 2 minutes equally divided. I 
just intended to have some time to refresh people's memories of what 
the two amendments were, since they were proposed and debated 
yesterday.
  As far as I am concerned, once I have had a chance to describe my 
amendment, and there has been any discussion in opposition, we can vote 
on the first of the Bingaman amendments.
  Mr. REID. Madam President, I ask the Senator to further modify the 
request to eliminate the 2 minutes of debate prior to the vote.
  Mr. THOMAS. That will be fine.
  The PRESIDING OFFICER. Is there objection to the request as modified?
  Without objection, it is so ordered.
  The Senator from Florida is recognized.
  (The statement of the Senator from Florida, Mr. Nelson, is printed in 
the Record under ``Morning Business.'')


                           Amendment No. 1413

  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Madam President, as I understand it, I now have 5 
minutes to describe the first of the two amendments I have offered to 
the electricity title of the bill.
  Let me make the obvious point at the beginning of my description, and 
that is that the amendment tries to do two basic things. It proposes 
language which would ensure that someone at the Federal level--in this 
case, the Federal Energy Regulatory Commission--has jurisdiction to 
review purchase and sale of generation companies and generation assets, 
the companies that actually produce the electricity about which we are 
talking and which we have all come to expect to get when we turn on the 
switch and see the room light up.
  We ought to have someone with authority over that because under the 
Domenici substitute as it now is, nobody has authority at the Federal 
level. It is not realistic to suggest the States can handle that 
problem. They cannot. There is no prohibition in law, and there will be 
none under this proposal, to one company acquiring all the generation 
in one particular region or one company acquiring all the generation in 
one part of the country. We should have someone reviewing the 
acquisitions of that generation capacity to be sure that ratepayers are 
looked out after. That is the first thing the amendment does.
  The second thing the amendment does is to prohibit cross-subsidy 
between utility companies and affiliated companies that may be in the 
same general holding company. We are eliminating the Public Utility 
Holding Company Act, so there is going to be no restriction as provided 
under that act. We need to be sure that cross-subsidy does not occur.
  I have an article dated December 26 of last year in the Wall Street 
Journal which does a very good job of pointing out the problem that 
needs to be fixed. It says:

       Energy companies burned by disastrous forays into 
     commodities trading and other unregulated businesses are 
     increasingly seeking to pass some of the financial burden on 
     to their utility units. This could lead to higher electricity 
     rates for consumers in coming years.

  Then it goes on to say:

       Utilities are being nudged to buy assets from affiliates to 
     make loans to down-at-the-heels siblings or pass more money 
     to their parent companies.

  The article goes through a series of examples of how this is 
happening.
  One example I thought was particularly constructive was Duke Energy. 
In July of 2001, a Duke accountant contacted regulators complaining 
that expenses generated by unregulated parts of the company were being 
transferred to the books of Duke's utilities.
  We need a capability at the Federal level to protect the ratepayers 
and to ensure that does not happen. We do not have that in the 
underlying Domenici substitute. The underlying substitute does say that 
the Commission shall look out to be sure the public interest is served, 
and that is useful. That, unfortunately, is very general.
  What we need in the law, I firmly believe, is a bright line 
requirement that in order for these kinds of acquisitions and sales to 
occur and to be approved, the Federal Energy Regulatory Commission 
ought to determine that there is not going to be a cross-subsidy as a 
result, that utilities will not be loaded down with debt from 
nonutility companies held by the same company. We need to keep the 
protection in the bill.
  Utilities are a different kind of business. It is important that the 
lights turn on when we flick a switch. It is important that other 
utilities function. In this case, in this electricity title, we need to 
be sure that ratepayers are adequately protected.
  I am persuaded that this amendment will strengthen the bill. I hope 
very much my colleagues will support it. It is exactly the same 
language we had in the bill last year, and last year there was an 
effort to delete the language which I am offering as a second-degree 
amendment, and that effort lost in a vote of 67 to 29. So a majority of 
the Senate is on record supporting the language I have proposed as an 
amendment to the underlying Domenici substitute. I hope Members will 
support the amendment. It will strengthen the electricity title. I very 
much believe it is good public policy and will serve us well in the 
years ahead when some of these problems recur, as I fear they will.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, how much time do I have?
  The PRESIDING OFFICER. Five minutes.
  Mr. DOMENICI. Madam President, I wish to make a point in case there 
are people observing the Senate. Senator Nelson from Florida indicated 
he had been waiting a long time--maybe all day--to be heard. There are 
a lot of Senators all day long who would like to come to the floor and 
be heard. The Senate is not the place where we just come down to the 
floor and automatically, if we come here, we ought to be heard. We have 
business, and we have rules. I am glad the Senator found time and we 
allowed 5 minutes and we allowed Senator Byrd 30 minutes, but we are 
engaged in a bill we are trying to pass.
  I had a lengthy discussion with my friend from Nevada, and I have no 
doubt he wants to get this bill finished. I thank him for his 
willingness to move along. We will have another amendment ready pretty 
soon.
  My objection to the Bingaman amendment is very simple. He alludes to 
last year and what happened with amendments such as his last year. 
There was no alternative last year. There is an alternative this year. 
It is the underlying electricity bill, which clearly protects the 
citizens, the users, and all of those concerns about mergers.
  The merger review in our section is supported by groups such as the 
National Rural Co-ops, the rural power people, and many others. If, in 
fact, we did not have protection in this area with reference to 
gobbling by merger, obviously they would not be for this underlying 
bill. So I oppose this amendment because we do not have to

[[Page 20136]]

expand FERC's merger authority. They have merger authority.
  Under current law, electric merger departments are heavily regulated. 
FERC, the Department of Justice, and the Federal Trade Commission must 
review proposed mergers for their impact on competition. States also 
review proposed mergers. Expanding FERC's authority to cover the 
acquisition of generation facilities is unnecessary. We have plenty of 
merger authority if that is what we are worried about. We are getting 
rid of undue regulation. There is no need to impose more.
  Further, changing FERC's review standards will impede efficient 
transactions, and we do not need that today, either.
  So while I have great respect and admiration for my friend, I believe 
the electricity bill that is pending before us, which has been 
carefully put together, has broad support all based on the fact that it 
fits all the pieces together properly. It should be left alone. We do 
not have to add more merger review layers.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Madam President, my understanding is that at this 
point, under the unanimous consent agreement, I am allotted 5 minutes 
to talk about my second amendment. Is that accurate?
  The PRESIDING OFFICER. The Senator is correct.


                           Amendment No. 1418

  Mr. BINGAMAN. Madam President, I will describe this second Bingaman 
amendment which was offered last evening. It was offered at a time when 
very few Senators or their staffs were in their offices and were not 
following this issue, I am afraid. The amendment tries to clarify a 
point in the bill that I think is very important.
  Senator Domenici's substitute contains a delay in the issuance of 
FERC's standard market design rulemaking and it delays it until July of 
2005, and that is not of concern. I accept that. Many believe the rule 
goes too far, should be dramatically modified, changed or completely 
abrogated, but others think we should go ahead right away. He has 
decided to put it off until July of 2005. So I am not involved in that 
in my amendment.
  My amendment leaves the delay of the standard market design rule in 
place so it will still be delayed until July of 2005. However, in an 
effort to prevent FERC from renaming its rule, I believe that was the 
purpose that Senator Domenici and his staff had in an effort to keep 
FERC from renaming its rule and issuing that same rule, or something 
very close to it, under a different title, the bill would prohibit any 
rule or order of general applicability on matters within the scope of 
the rule. I think the clear meaning of that language is that FERC could 
not issue a rule or order a general applicability on any issue that is 
dealt with in the proposed standard market design for 2 years from now.
  Standard market design covers a world of issues. One example, FERC 
currently has a rule in process related to interconnections to the 
transmission grid. No matter what that rule said, FERC would be 
prohibited from issuing that rule, as I read this language. I do not 
think that was the intent of my colleague from New Mexico or others who 
worked on this bill.
  There are even rules that the Commission is required to issue by 
provisions in the bill. We have various provisions in other parts of 
this bill that say the Federal Energy Regulatory Commission shall issue 
an order on this issue, the Federal Energy Regulatory Commission shall 
issue an order on this subject. The bill requires rules on mergers, on 
transmission access by public power entities, on participant funding, 
and on other matters.
  We are in the ironic position of having this one provision which says 
an order cannot be issued, a general applicability, on any subject that 
is covered by standard marketing design and at the same time we are 
saying you have to go ahead and issue orders of general applicability 
in these other areas.
  So I am trying to get that clarified. I do not believe we are in 
disagreement on the substance but I do think it is important that we 
provide clear language or else we will be shooting ourselves in the 
foot.
  The amendment I am offering says we would not want FERC issuing any 
final rule or order of general applicability establishing a standard 
market design. I think that is what we are trying to do. That is all my 
amendment does is to clarify that is what we are trying to do. I hope 
everybody will support it. I think it will make very clear that FERC 
will be able to go ahead and do the work that it is required to do in 
the next couple of years, between now and July of 2005. If we have 
another crisis such as we have had out in California or out in the west 
coast, we are going to be expecting FERC to issue orders of general 
applicability. They should be doing that. They should not be issuing a 
standard market design, and I am not suggesting they should, but they 
should have the authority to issue orders of general applicability and 
that is exactly what my amendment would give them.
  I hope very much my colleagues will support the amendment and we can 
improve the bill by doing so.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, one of the most difficult negotiations 
in this bill was getting the language that prohibited the finalization 
of SMDs until July 1, 2005. The occupant of the chair knows that. That 
is what we have been talking about. Other Senators wanted a longer 
time. Some wanted a shorter time. Well, Senator Bingaman changes the 
language surrounding that July 2005 agreement. Frankly, I would be 
letting down all of those different groups that worked together to 
negotiate the language that said the finalization of SMDs will be 
delayed until July 1, 2005; by changing the words around it, all kinds 
of groups will be saying we have let them down; we changed what we 
agreed to.
  In other words, I regret to say that the exact words surrounding this 
2005 letter expansion are binding. Senator Bingaman wants to clarify it 
one way. There will be a whole group of people who worked on it saying, 
well, I did not want it clarified that way. I wanted it clarified 
another way.
  The point is, it will work like it is. It might work like he wants it 
to work but the problem is we agreed to these words. Believe me, I am 
not agreeing to words just for words. They will work. It is just that 
the distinguished Senator would like to be more precise, more specific, 
his way. In doing that, he puts this Senator, who has worked this out 
with all of these other people, in a bind that if I say, yes, let's 
change it, then we are going to have telephone calls besieging Senators 
all over saying vote no; the senior Senator from New Mexico is not 
doing what he told us he would do.
  Now, I regret that but that is just the result of the way we do 
things. I am very proud of the words, the date, and the negotiation. I 
do not lose a lot of Senators on that language and that date. Maybe six 
or eight wanted more time but we got a pretty good deal for almost 
everybody. So I just cannot take the risk. I am sorry.
  With that, I do not need any more time. I yield back any time I have 
remaining.


                       Vote on Amendment No. 1413

  Mr. DOMENICI. I move to table the first Bingaman amendment, which is 
the pending subject matter, 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 on agreeing 
to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Massachusetts (Mr. Kennedy), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 53, nays 44, as follows:

[[Page 20137]]



                      [Rollcall Vote No. 313 Leg.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Wyden

                             NOT VOTING--3

     Biden
     Kennedy
     Kerry
  The motion was agreed to.
  Mr. THOMAS. Mr. President, I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. FRIST. Mr. President, I ask unanimous consent that the next two 
votes in this series be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, there will be additional votes this 
evening. We are going to stack these two rollcall votes at 10 minutes. 
The chairman and ranking member have been here since 9 o'clock this 
morning. They have been working hard. We will continue tonight. We will 
finish the electricity amendment today. Therefore, Members can expect 
votes into the evening.


                       Vote on Amendment No. 1418

  The PRESIDING OFFICER. The question occurs to the amendment of the 
Senator from New Mexico.
  Mr. THOMAS. Mr. President, I move to table the amendment and I ask 
for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 44, as follows:

                      [Rollcall Vote No. 314 Leg.]

                                YEAS--54

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Kyl
     Landrieu
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Murray
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Gregg
     Harkin
     Inouye
     Jeffords
     Johnson
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Wyden

                             NOT VOTING--2

     Kennedy
     Kerry
       
  The motion was agreed to.
  Mr. CRAIG. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 1416

  The PRESIDING OFFICER. The question now occurs on the Feingold 
amendment No. 1416.
  Mr. DOMENICI. Mr. President, parliamentary inquiry. Is there any time 
to speak on this amendment?
  The PRESIDING OFFICER. There is no time to speak on the amendment.
  Mr. DOMENICI. I move to table the Feingold amendment 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 on agreeing to the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Mississippi (Mr. 
Lott) is necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER (Ms. Collins). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 50, nays 48, as follows:

                      [Rollcall Vote No. 315 Leg.]

                                YEAS--50

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Bond
     Breaux
     Bunning
     Burns
     Campbell
     Carper
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Landrieu
     Lincoln
     Lugar
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Sununu
     Thomas
     Voinovich
     Warner

                                NAYS--48

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Brownback
     Byrd
     Cantwell
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Roberts
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Talent
     Wyden

                             NOT VOTING--2

     Kerry
     Lott
       
  The motion was agreed to.
  Mr. DOMENICI. I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, I wonder if the minority whip will 
advise me--we are on the electricity title--are we ready to vote on 
passage of the electricity title or do you have additional amendments?
  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. Madam President, as I indicated last night, we have Senator 
Dayton who still wishes to offer amendments. Senator Cantwell has at 
least two more amendments. Senator Feinstein has an amendment. Those 
are the ones I know of at this time. And Senator Boxer has an 
amendment. Senator Cantwell is here. She has a very important amendment 
to offer.
  I relate to my distinguished friend, the manager of this bill, that 
Senator Kennedy is here and wishes to speak also. We are in a position 
where we are ready to move forward on the electricity title with a 
number of amendments.
  Mr. DOMENICI. Does Senator Kennedy have an amendment?

[[Page 20138]]


  Mr. REID. The Senator from New Mexico will have to ask Senator 
Kennedy.
  Mr. KENNEDY. No. It has been the decision of the leadership to have a 
vote on Judge Pryor tomorrow. Under the agreement, we will have 1 hour 
for debate. This is an important nomination. I wish to address the 
Senate on that matter since we are going to be under very strict time 
limitations on the morrow.
  We had that series of votes. I want to accommodate the managers of 
the bill. If there is an amendment that needs to be disposed of, I will 
be glad to wait; otherwise, at some point, I wish to address the Senate 
because this is an extremely important nominee. The nomination was just 
reported out of committee, and we will be voting in a very short period 
of time on the nominee. It is an extremely important nomination. If the 
decision was to not have that vote on the morrow, I am glad to withhold 
my statement and make my statement at the time the Senate addresses the 
nomination. I will certainly work with the floor managers to work out a 
time that is suitable, but I am ready to speak. If there is a pending 
amendment, and it is the desire of the floor manager to move ahead, I 
will accommodate him.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, I say to the distinguished Senator 
from Massachusetts, I will speak to the majority leader, as soon as an 
amendment is laid down, with reference to the issue Senator Kennedy 
just raised. I understand if we proceed on an amendment, we will have 
an hour or so, at which time I will talk with the majority leader and 
tell him of your desire and others to speak, and see what his wishes 
are in that regard.
  Mr. SCHUMER. Will my colleague yield?
  Mr. DOMENICI. Without losing my right to the floor.
  Mr. SCHUMER. There are others who wish to speak in addition to the 
Senator from Massachusetts.
  Mr. DOMENICI. I will mention the Senator's name.
  Mr. REID. I know the Senator from New Mexico has the floor.
  Mr. DOMENICI. Yes.
  Mr. REID. Madam President, earlier today I alerted the Senate that we 
would have members of the Judiciary Committee come to the floor, and we 
have members of the Judiciary Committee here today. We have the Senator 
from Massachusetts, who is a three-decade member of that committee. We 
have Senator Schumer, who is a relatively new member of that committee. 
Sometime tonight they are going to speak on the Pryor nomination. I 
indicated that would happen, and that is going to happen. They have an 
absolute right to speak. I know the Senator from Massachusetts is being 
kind and generous, but he has a right to speak. It can either be done 
now or 5 minutes from now or 10 minutes from now, but the Senator from 
Massachusetts is going to get the floor, and he is going to speak on 
the Pryor nomination, as I alerted the Senate today that would happen.
  We did not make the choice that we would vote for the seventh time on 
Estrada today. The votes have not changed. We did not make the decision 
we would vote on Priscilla Owen. We have voted three times, and the 
votes have not changed. We did not make the decision that the Pryor 
nomination would be voted on without a single bit of debate on the 
Senate floor, but just move it forward for cloture. This is not as if 
it is a surprise.
  We telegraphed our intentions today that there would be members of 
the Judiciary Committee who would come to the Chamber and speak, and 
that is going to happen tonight.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Madam President, I cannot do anything more than that, 
and I think the distinguished Senator from Massachusetts accepts my 
statement as an honest statement.
  Mr. KENNEDY. Yes.
  Mr. DOMENICI. I will leave the floor. I will find the leader, and I 
will tell him what is going to happen. I will seek his advice and give 
him my advice. I very much appreciate the Senator from Massachusetts 
letting me know. We have a number of amendments left. We have important 
legislation before us. It is absolutely impossible to do the people's 
business if, in fact, during the next 12 hours we have 6 or 8 hours 
taken up by speeches with reference to a judge. We will get it done, 
but we will be here Sunday, which is all right with this Senator. I do 
not think I want to let that happen under my watch as manager, but I 
guarantee my colleagues, for those who insist they are going to speak, 
I can assure them we are going to be here.
  Sooner or later the speeches will run out, and we will be here, and 
we will take up the pending amendments on this bill. I have been told 
that by the leader unequivocally. I assume that is true if only 60 
Senators stick around. So long as we do not lose a quorum, I presume we 
are going to be here on Friday, on Saturday, and on Monday to finish 
this bill. Senators have their rights, but we have an obligation to do 
this work.
  I say to the distinguished whip, if he will call up the next 
amendment, I will leave the floor and find out what the leader will do 
about this, and perhaps we can come up with some accommodation with 
reference to this issue. I thank Senator Kennedy for his willingness to 
let me do that.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I will proceed then. I just wish to 
indicate, as someone who also has been a bill manager, I understand 
completely the frustration the Senator from New Mexico has and his 
desire to move along. As Senator Reid mentioned, we did not anticipate 
at the time this nominee was reported out that we would have a vote so 
early in the consideration.
  Then last week, the chairman of the committee made a very extensive 
statement about the nominee and also the procedures of the committee 
itself, and I want to attempt to correct that record.
  We are on the eve of a vote on the nominee, and that has been 
established by not the Senator from New Mexico but by the majority 
leader. We are just trying to meet our responsibilities as members of 
that committee who have strong views and want to share those views with 
the membership and we also feel a responsibility to tell, to the extent 
the American people are interested, what our reservations are in terms 
of the merits and the process.
  I say to the Senator from New Mexico, I plan to be here this evening, 
and if it is the desire of the floor managers to consider another 
amendment, I am glad to take my turn, although I do think we ought to 
have at least an opportunity to speak in the next few hours.
  I will begin my statement on this nominee. If it so works out and the 
Senator from New Mexico wants to intercede, I will be glad to try to 
accommodate him.
  Mr. DOMENICI. Will the Senator yield?
  Mr. KENNEDY. Yes.
  Mr. DOMENICI. How long does the Senator intend to speak?
  Mr. KENNEDY. I expect to talk probably 30 minutes.
  Mr. DOMENICI. Does the Senator from New Mexico have the floor or the 
Senator from Massachusetts?
  The PRESIDING OFFICER. The Senator from Massachusetts has the floor.
  Mr. KENNEDY. I would rather not get caught into a precise time limit 
at this time but my general sense is about 30 minutes.
  Mr. DOMENICI. Will the Senator yield? I will get right back to him.
  Mr. KENNEDY. That is fine.
  Mr. DOMENICI. Madam President, let me repeat----
  Mr. KENNEDY. Madam President, I think I have the floor but I will 
yield to the Senator from New Mexico for whatever comment he wants to 
make.
  Mr. DOMENICI. I ask for a couple of minutes, and it will not take any 
longer.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from New Mexico.
  Mr. DOMENICI. I thank the Senator. First, I say judges are important, 
and

[[Page 20139]]

speaking on behalf of or against judges is very important. I say that 
not only to the Senators but to our majority leader. It is also very 
important that we pass an Energy bill. We have been waiting for weeks 
and weeks. This committee was asked to put a bill together. The Senator 
from New Mexico wants to get the Energy bill finished. Clearly, I find 
nothing in the rules that says the Senator from Massachusetts is not 
entitled to make his speech of 30 minutes or up to an hour. I do 
believe it is important, nonetheless, that somewhere along the line 
there be some accommodation and that we proceed to get the Energy bill 
finished. I understand there are four or five amendments. I wish I 
could see them sooner or later so I will know what they are about but 
nobody owes me that, either. We will take it as it comes.
  I will ask the distinguished majority leader to be accommodating so 
we can get this bill finished, but I am doing that with great 
trepidation, not as to Senator Kennedy but as to whether there is a 
willingness to pursue this bill with vigor if that accommodation is 
made. I am not sure about that based on some things that have been 
happening but I hope it is. It is with that in mind that I will talk to 
the leader, hoping it does mean that if accommodation is made, we will 
proceed with dispatch on the Energy bill.
  I thank the Senator for yielding to me.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. SARBANES. Will the Senator yield for a question?
  Mr. KENNEDY. I will be glad to yield for a question.
  Mr. SARBANES. I have been listening to this discussion. Am I correct 
in saying that the Senator would not be seeking to speak now if the 
other side had not indicated that they were intending to try to bring 
the nomination of Mr. Pryor to the Senate tomorrow? Is that right?
  Mr. KENNEDY. The Senator is exactly correct.
  Mr. SARBANES. The Senator is not inserting himself into the debate on 
the Energy bill seeking to slow the Energy bill down; he is prompted to 
do this by the fact that the other side is scheduling this nominee for 
a vote, I understand, with no debate whatsoever. Is that correct?
  Mr. KENNEDY. Well, that is correct. It is not the members of the 
Judiciary Committee who are holding up the consideration of the Energy 
bill. It is the decision to put before the Senate, under the legitimate 
procedures of the Senate, a cloture petition to have a vote on this 
nominee, effectively shutting off all the debate.
  Quite clearly, my own belief is if we had the time, and also had the 
time during the August recess, to complete the investigation which 
needs to be done on this nominee, the Senate would be much better 
informed, the American people would be much better informed, and the 
judiciary would be much better served. That is not the decision of the 
leadership and, therefore, we believed that as the day wore on, after 
5, we would at least have an opportunity, since this is an enormously 
serious nominee for a very serious position and there are very serious 
charges, to address the Senate.
  Mr. SARBANES. Will the Senator yield for a further question?
  Mr. KENNEDY. Yes.
  Mr. SARBANES. It is my understanding that twice this week, if I am 
not mistaken, we have had to go off of the Energy bill, which we are 
being told we must move forward, in order to address other judgeship 
nominees who had previously been voted on a number of times. So we have 
been diverted off the track of the Energy bill by these judicial 
nominees, not of our doing but because of the scheduling which the 
other side has undertaken.
  I know our assistant leader has been concerned about that as well, if 
I am not mistaken, in that regard. Is that not correct?
  Mr. KENNEDY. The Senator is correct. As the Senator remembers, I 
think those votes were in the late morning and even interrupted 
committee work at that time, which many of us were involved in, let 
alone the consideration of the Energy bill.
  Mr. SARBANES. I thank the Senator.
  Mr. KENNEDY. I thank the Senator from Maryland.
  The PRESIDING OFFICER. The Senator from Massachusetts.

                          ____________________