[Congressional Record (Bound Edition), Volume 160 (2014), Part 8]
[Senate]
[Pages 11848-11849]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             BAY NOMINATION

  Mr. BARRASSO. Mr. President, I rise today to discuss the nomination 
of Norman Bay. President Obama has nominated Mr. Bay to be a 
commissioner of the Federal Energy Regulatory Commission, or FERC. The 
President has announced that if Mr. Bay is confirmed, his plan is to 
elevate Mr. Bay to the position of chairman of FERC. Over the past few 
months there has been much discussion about whether the President 
should have nominated Mr. Bay to be chairman, and I think there is very 
good reason to ask whether the President really should have nominated 
Mr. Bay at all.
  In my view Mr. Bay is not qualified to be a commissioner, let alone 
to be chairman of FERC. Mr. Bay has only 5 years of working experience 
in the energy sector--a total of 5 years. This is less time than the 
Keystone XL Pipeline has been pending with the Obama administration.
  During the nomination hearing, I specifically asked Mr. Bay about his 
lack of experience. In response, he cited his summer internship at a 
Department of Energy research facility during college--a summer 
internship during college. With all due respect, this man does not have 
the background, the qualifications, and certainly not the experience to 
take on this important role.
  The President has nominated Mr. Bay to replace FERC's current 
chairman Cheryl LaFleur. In contrast to Mr. Bay, whom the President has 
nominated to replace Ms. LaFleur, Ms. LaFleur has over 25 years of 
experience in the energy sector. That includes 4 years as a 
commissioner of FERC and 7 months as the chairman of FERC. I don't 
often agree with Ms. LaFleur's policies, but you cannot deny that she 
is qualified to serve.
  Mr. Bay's lack of experience is not the only reason I oppose his 
nomination. There are a number of outstanding factual disputes about 
Mr. Bay's tenure as the FERC's enforcement director. For example, there 
are serious allegations that the enforcement staff, during the time Mr. 
Bay has been in charge, has violated basic principles of due process. 
These allegations include the withholding of exculpatory evidence from 
subjects of FERC investigations.
  In May the Energy Law Journal published an article by William 
Scherman, who was a former general counsel of FERC and by two other 
attorneys familiar with this situation, and they write: ``There is a 
wide-spread view that the FERC enforcement process has become lop-sided 
and unfair.''
  They said that:

       One need only to observe the fact that Enforcement Staff 
     denies, in case after case, the existence of exculpatory or 
     exonerating materials . . . only to . . . produce a subset of 
     those materials too late in the process to be of use . . . in 
     raising defenses.

  The authors explain that ``one of the fundamental principles of due 
process is that the government is not permitted to hide information 
from the accused that may aid in his or her defense.'' They say that 
``[FERC] Enforcement Staff routinely fails to produce exculpatory 
documents''--routinely fails to produce exculpatory documents.
  During Mr. Bay's nominating hearing, I asked him about these 
allegations. At first he denied the allegations were true, but then he 
stated he was ``not aware of any instance in which Enforcement Staff 
has failed to produce exculpatory materials.''
  So I asked him to clarify his remarks. I asked him whether the 
allegations were true or not. He pled ignorance.
  With all due respect, this answer is inexcusable. This is his staff 
doing his work under his direction. He should know whether they 
withheld the evidence from defendants.
  There are not only questions about his commitment to due process, but 
there are also questions about the President's nominee on whether he or 
anyone else at FERC suggested that an enforcement action be settled in 
return for approval of a merger. So there are questions about whether 
an enforcement action should be settled in return for approving a 
merger.
  The ranking member of the energy committee asked all about this 
during the nomination hearing. The ranking member of the committee 
asked Mr. Bay about the connection between FERC's enforcement 
settlement with Constellation Energy and FERC's approval of 
Constellation's merger with Exelon.
  The ranking member noted that FERC settled with Constellation the day 
before--1 day before it approved a merger between Constellation and 
Exelon. In fact, the enforcement settlement, which Mr. Bay himself 
signed, specifically mentions the merger between these two. The ranking 
member of the Energy Committee asked Mr. Bay whether he is concerned 
about the appearance of a quid pro quo between the settlement agreement 
one day and the merger approval the next. Mr. Bay admitted he would be 
concerned.
  The ranking member then asked if he or others suggested to FERC that 
Constellation should settle the enforcement action in order to get its 
merger approved. In response he said that ``[t]o the best of [his] 
recollection'' he didn't make such a suggestion and that he did not 
know what others at FERC--including his own staff--may have suggested.
  With all due respect to Mr. Bay, his answer is, at best, hard to 
believe.
  At the time FERC's enforcement settlement with Constellation was the 
largest enforcement settlement completed in the history of the agency. 
So they make this settlement, it is the largest enforcement settlement 
in the agency's history, and the next day they allow a merger which has 
created one of the Nation's largest utilities. Are we really to believe 
that Mr. Bay doesn't remember what he or others at FERC said to 
Constellation? Can we really believe that?
  I believe the energy committee or some other independent entity 
should get answers to these and other questions surrounding Mr. Bay's 
record before we decide--this Senate--to confirm and promote him.
  I know that some Senate Democrats are nervous about voting for Mr. 
Bay--and I believe rightfully so. These Senate Democrats have said they 
will vote for Mr. Bay only because they believe a so-called deal was 
cut with President Obama. Specifically, they say the President will 
allow Ms. LaFleur to continue serving as chairman for 9 months after 
her confirmation.
  The President hasn't put it in writing, hasn't really told all of the 
Members that. And even if the President had, this is no way for the 
Senate to be able to enforce it. The truth is this is a gimmick, and it 
is a gimmick invented specifically by Senate Democrats so they can once 
again avoid standing up to President Obama and the Senate majority 
leader.
  Let's be clear about what President Obama is asking the Senate to do. 
The President is asking the Senate to demote Cheryl LaFleur from being 
chairman--she is a highly qualified woman, a Democrat with over 25 
years of experience in energy and 4 years of experience as a 
commissioner of FERC--in order to promote an unqualified man.
  Why should the Senate do this?
  The Senate majority leader put it this way in the Wall Street 
Journal. He said: I don't want her. ``I don't want her as chair.'' He 
said: ``She has done some stuff to do away with some of [Chairman] 
Wellinghoff's stuff.'' This is the majority leader of the Senate: ``I 
don't want her as chair.''
  In short the President and the Senate majority leader want a rubber 
stamp. By all indications, they will get that with Mr. Bay.
  On May 20, during his confirmation hearing, Mr. Bay admitted that he 
wasn't even following EPA regulations and their impact on electric 
reliability in this country. Two weeks later on June 4, in response to 
written questions, he stated the EPA's regulations

[[Page 11849]]

are ``manageable.'' Well, either he is an exceptionally quick study or 
he doesn't take electric reliability seriously.
  FERC is an independent agency. It needs a highly qualified leader, a 
leader whose record is beyond reproach, a leader who will resist 
political interference from the White House and the majority leader, 
and Mr. Bay is not that individual.
  For these reasons, I am voting against Mr. Bay and urge all Members 
to do the same.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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