[Congressional Record (Bound Edition), Volume 160 (2014), Part 8]
[Senate]
[Pages 11967-11974]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF NORMAN C. BAY TO BE A MEMBER OF THE FEDERAL ENERGY 
                         REGULATORY COMMISSION

                                 ______
                                 

 NOMINATION OF CHERYL A. LAFLEUR TO BE A MEMBER OF THE FEDERAL ENERGY 
                    REGULATORY COMMISSION--Continued

  The PRESIDING OFFICER. Under the previous order, the time until 3:15 
p.m. will be equally divided and controlled between the two leaders or 
their designees. If neither side yields time, both sides will be 
equally charged.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Madam President, are we in a quorum call presently?
  The PRESIDING OFFICER. We are not.
  Ms. MURKOWSKI. Madam President, I have come to speak about the two 
nominees on the executive calendar who are before us this afternoon. 
Norman Bay and Cheryl LaFleur are nominated to be commissioners on the 
Federal Energy Regulatory Commission, FERC, an increasingly critical, 
independent regulatory commission.
  As the Senate has considered these nominations, there has been kind 
of a weird drama that has played out throughout the entire community 
that follows the FERC and, as I understand, the agency itself has been 
really very distracted by it. Many are concerned the wrong person is 
set to take over as chair of the FERC and that the Commission is at 
risk of losing its reputation for objectivity. So for the benefit of 
Senators who are not on the energy committee and for members of the 
public who have not followed the controversy surrounding these 
nominees, let me provide a little bit of perspective this afternoon.
  Both nominees have been serving at the FERC. Ms. LaFleur currently 
leads the agency as its chair. She has done so with distinction for the 
better part of a pretty difficult year. This is a year that has brought 
about the polar vortex and challenges to bulk power system reliability. 
The other individual, Mr. Bay, is an employee. He is the director of 
the agency's Office of Enforcement. He was appointed to that post by 
its somewhat controversial former chair, John Wellinghoff of Nevada.
  If confirmed, Mr. Bay will become the first FERC employee in the 
agency's history who would go directly and immediately to the 
commission itself, despite just 5 years of relevant experience. 
Furthermore, Mr. Bay will not only be elevated to the post of 
commissioner; President Obama has announced that Mr. Bay will be 
designated as chairman after his confirmation. That means that Ms. 
LaFleur, the FERC's only female commissioner, will be demoted when Mr. 
Bay takes over as chair. How soon Ms. LaFleur's demotion will take 
place is unclear at this moment.
  At the energy committee's business meeting to consider these 
nominees, there was a lot of talk about a deal that would allow Ms. 
LaFleur to remain as chair for a period of time. It was suggested that 
this would give Mr. Bay some much needed on-the-job training as a rank 
and file commissioner. So there was a lot of discussion going back and 
forth. I was certainly part of that discussion. But talk of a deal and 
confirmation of a deal, giving the assurances that certainly this 
Senator has sought and yet was not given--talking about a deal and 
getting a deal are two different things.
  So as we discuss where we are with these nominees, I think it is 
important to recognize that even if Ms. LaFleur stays on for a period 
of months--whether it is 9 months as some have suggested the deal is or 
a different period of time--what we understand is that Ms. LaFleur will 
only be allowed to continue in an acting capacity.
  So stop and think about this. We have President Obama who has 
nominated Ms. LaFleur twice for high office, and despite what I think 
has been her distinguished service as a commissioner and as chair of 
the FERC, the White House dismisses her as an acting chair. The 
administration reportedly has limited her authority even to hire staff. 
As some have suggested, this is just a technicality and this is what 
happens within the Commission. That is not my understanding at all. I 
would view it as an affront. If one is going to be the chair, one 
should have the full authorities of the chair.
  Even though I disagree with ``Acting'' Chair LaFleur on some key 
policy matters, by all accounts, from both Republicans and Democrats, 
she is doing a good job. She is fair. She seeks balance. She has the 
temperament I think we need for this commission. She has the personal 
qualities of leadership we look for. She clearly has the experience. 
She has 25 years' worth of experience, in fact. I certainly hope she 
will be easily confirmed this afternoon. In fact, I hope Chair 
LaFleur's bipartisan support has not hurt her prospects.
  Chair Landrieu observed during the committee's consideration of these 
nominees that Ms. LaFleur's renomination ``was not a sure thing just a 
couple of months ago.'' But we have to ask: Why not? Why wasn't the 
renomination of the only woman serving as a FERC commissioner--a 
Harvard-educated Obama appointee from Massachusetts--why wasn't she a 
sure thing from the get-go? Was it her bipartisan appeal? I would 
certainly hope not. Was it her good work as a chair? Again, I hope not. 
To me, those are reasons one would choose her to lead the FERC, not 
someone else.
  One hint came from our majority leader, Senator Reid. He recently 
told the Wall Street Journal that Ms. LaFleur ``has done some stuff to 
do away with some of Wellinghoff's stuff.'' Now, he didn't really 
define what ``stuff'' that was and didn't acknowledge that much of Mr. 
Wellinghoff's ``stuff'' was either controversial or incapable of 
withstanding legal challenge.
  Before we turn to Mr. Bay and his unprecedented promotion from 
Director of the Commission's Office of Enforcement in the face of Ms. 
LaFleur's demotion, let's discuss the agency the White House proposes 
he would lead for just a second. Why does the chairmanship of the FERC 
matter so much? Well, the Presiding Officer sits on the energy 
committee. She knows. She is watching this. She is looking at the 
issues of reliability. In the energy world, FERC regulates ``midstream 
everything.'' The chairman is its CEO, and under his or her leadership, 
FERC

[[Page 11968]]

regulates interstate natural gas and oil pipelines, LNG import and 
export facilities, the sale of electricity at wholesale, the 
transmission of electricity in interstate commerce--basically the 
Nation's bulk power system, practically speaking, its high voltage 
transmission networks, also the reliability of the bulk power system, 
the licensing of hydroelectric facilities and the safety of dams. The 
list goes on and on.
  One further example is the safeguarding of sensitive information 
about our critical energy infrastructure--information that was 
compromised by FERC during the tenure of former Chairman Wellinghoff. 
That series of events is now subject to an ongoing inquiry by the 
inspector general of the Department of Energy, and it is a breach that 
Ms. LaFleur has vowed will not happen again.
  Given the significance of this agency, let's consider Mr. Bay. So, 
beyond the demotion of Ms. LaFleur, and beyond his lack of relevant 
experience, what is causing me pause? To begin, there are questions 
about the fairness and transparency of the functioning of the FERC 
Office of Enforcement during Mr. Bay's tenure there. I haven't resolved 
those questions, but I know others are looking at them. Senator 
Barrasso has called attention to some of the questions. He has called 
for an independent review of the facts in dispute.
  Second is the question of the circumstances under which Mr. Bay would 
recuse himself from at least 43 different matters, including some high 
profile matters that have been pending in the Office of Enforcement on 
his watch. But, unfortunately, Mr. Bay apparently doesn't see a need to 
recuse himself from these proceedings.
  Third are the answers that Mr. Bay provided to questions from those 
of us on the energy committee. At best, many were unclear and, at 
worst, his responses were simply evasive.
  Finally, I keep coming back to the deal--the waiting period that was 
needed to attract enough support on the Democratic side to report Mr. 
Bay's nomination from committee. So we have to ask the question: What 
are those terms? Will the acting chair have the opportunity to serve 
fully and completely as chair? Will it be clear that Mr. Bay is not a 
``shadow chairman'' or a ``chairman-in-waiting'' during this crucial 
period? At a minimum, before we make a choice about who should lead the 
FERC, the President owes Senators a clear time line of who will be in 
charge and what the powers are that will be given to him or her.
  FERC is just too important a commission. It is too important for 
appointees to be handled in this way.
  So, today, I am going to be supporting the confirmation of Ms. 
LaFleur. In fact, I am pleased to support her, even though I don't 
always agree with her policy views. But I do regret I will not give my 
support to Mr. Bay, and I urge other Senators to withhold their support 
as well.
  With that, I would yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.


         Protect Women's Health From Corporate Interference Act

  Ms. MIKULSKI. Madam President, I wish to take this opportunity to 
speak in support of the Murray legislation to protect women's health 
from corporate interference. Because of an obligation to speak at a 
memorial service tomorrow, I will not be able to speak tomorrow 
morning. I feel so strongly about this issue that I would like to say a 
few words today.
  This legislation ensures that the personal opinion of an employer 
doesn't trump the medical opinion of a doctor. I sure wish this 
legislation were not necessary, but, unfortunately, because of the 
recent Supreme Court decision now known as the Hobby Lobby decision, it 
is necessary.
  Let's talk about how we got here. As the Presiding Officer knows, we 
worked on health care reform. We were so concerned that over 40 million 
people didn't have access to health care. We were concerned that just 
being a woman was treated as a preexisting condition. We were charged 
double for our insurance, and we often had to pay significant 
copayments for those procedures related to early detection and 
screening, for those procedures that would affect us such as mammogram 
care. So on a bipartisan basis we ended that discrimination so women 
couldn't be charged more than men of the same age or comparable health 
status.
  We also wanted to be sure we could do preventive health care 
benefits. That was an amendment I offered on the Senate floor. We had a 
spirited debate, even with Senator Murkowski. Senator Murkowski and I 
agreed on the same goals, but we had different methods. Ours won; mine 
won. I wanted to be sure politicians didn't decide what was preventive 
health care. I wanted to be sure politicians didn't decide what should 
be covered or not, and I didn't want to bring politics into it. So we 
turned to one of the most distinguished organizations in our government 
that makes recommendations to our government on health care policy. It 
is known as the Institute of Medicine. It is a nonpartisan group funded 
by this Congress made up of scientific experts to advise us on medical 
and health care. We wanted them to tell us what should be the 
preventive services that were included.
  So when we hear the criticism: ``Some government agency decided this; 
some bureaucrat decided this''--these are scientists, these are 
physicians, these are skilled researchers, and they determined that 
women should have access to eight preventive health care benefits for 
free. First of all, screening for gestational diabetes--that is, when a 
woman gets diabetes while she is pregnant or because she is pregnant-- 
high risk to the mother, high risk to the child. That means high risk 
HPV DNA testing, annual counseling and screening for HIV, comprehensive 
lactation support, and counseling, screening for domestic violence, an 
annual well-woman preventive care visit, and a full range of FDA-
approved contraceptive methods. That is what it was. It was the 
Institute of Medicine--the Institute of Medicine--not Barbara Mikulski, 
not the Democrats, not President Obama--that said the FDA-approved 
contraceptive methods should be available.
  That brings us to the Supreme Court and Hobby Lobby, a for-profit 
company, employing thousands of people of different faiths and 
religions.
  Hobby Lobby's owners did not want to cover certain forms of 
contraception for their female employees. They said it was against 
their religious beliefs, and the Supreme Court agreed with that--
actually, the five men on the Supreme Court said they did not have to. 
The women on the Supreme Court offered a dissenting opinion.
  This ruling of the Court says the personal opinion of your employer 
is more important than the medical opinion of your doctor. As the 
Presiding Officer from Wisconsin knows--she, has put a lot of work into 
understanding health care and the delivery system--contraceptive 
methods are not always used to prevent pregnancy. Some are to deal with 
fibroids and other medical conditions. This ruling, unfortunately, says 
that a for-profit company can deny female employees coverage of 
important preventive health care based on religious objections of the 
company's health care ownership or leadership team.
  I always felt health care decisions should be made by the patient and 
their doctor, by a woman and her doctor, not by an employer or an 
insurance company. So it concerns me greatly that the Supreme Court 
Justices decided against that. It concerns me greatly that the Supreme 
Court Justices decided the employers should have the power to determine 
what medical care is available to their female employees. This is 
pretty scary, actually. I support what Supreme Court Justice Ginsburg 
said. What exemption does this extend? Does this go to blood 
transfusions for some groups, antidepressants for some other groups, 
vaccinations for other groups? The Supreme Court said: Oh, no, it is 
only for this. Well, one Supreme Court decision leads to another 
Supreme Court decision.
  So Senator Murray, who is an architect of a bill of which I am a 
cosponsor, has led the way. Her bill does two things. It prohibits 
employers from denying coverage of specific health care

[[Page 11969]]

items or services if the coverage of that item or service is required 
by Federal law. It keeps in place, however, protections for religious 
organizations. So houses of worship can be exempted from this mandate 
of contraceptive coverage, religious nonprofits can certify that they 
do not want to offer contraceptive care, and insurers work separately 
with employees.
  The Supreme Court decision is an attempt to deny women's access to 
birth control disguised as an effort to protect religious freedom. I am 
a strong supporter of religious freedom. I stood on this floor and 
voted with its architect, Senator Ted Kennedy--a happy memory--that we 
would always have this religious protection of religious organizations, 
their nonprofit affiliates.
  So I hope we do support the Murray bill, that it follows the 
processes within the Senate, and it comes to our attention. I believe 
this will go a long way to clarifying this very important distinction 
between the religious freedom, particularly of religious 
organizations--houses of worship and the nonprofits affiliated with 
them--but it does not embody in a private business the rights of an 
individual.
  Madam President, I thank you for your attention and that of the 
Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Thank you, Madam President.
  I have to dispel some of the myths that are being told about the 
Hobby Lobby decision.
  First of all, one of the biggest distortions I think has been this 
hashtag campaign #NotMyBossBusiness because before the Hobby Lobby 
decision--and as now--employers cannot deny their employees access to 
birth control.
  So let's be clear. Employers cannot deny their employees access to 
birth control. So the #NotMyBossBusiness hashtag and I think some of 
the statements that are being made on the Hobby Lobby decision are a 
misrepresentation or distortion of what that decision stands for.
  You do not have to take my word for it. In fact, the Washington Post 
Fact Checker yesterday debunked several of the outrageous claims that 
are being made about this decision. In fact, here are some of the 
things we know are true about the Hobby Lobby decision: ``Nothing in 
the ruling allows a company to stop a woman from getting or filling a 
prescription for contraceptives.'' ``Nothing in the ruling allows a 
company to stop a woman from getting or filling a prescription for 
contraceptives.''
  The majority opinion of Hobby Lobby actually states expressly that 
``under our cases, women (and men) have a constitutional right to 
obtain contraceptives.''
  In fact, what the Fact Checker found in response to one lawmaker's 
claim about the Hobby Lobby decision--who claimed that it means 
employers can restrict the ability of their employees to use 
contraceptives--the Washington Post stated:

       No boss under this ruling has the right to tell an employee 
     that they cannot use birth control. That's simply wrong.

  I think that is very important for the American people to understand, 
for the women of this country to understand.
  Also, the Washington Post, when debunking many of the claims made 
about the Hobby Lobby decision, said: ``Simply put, the court ruling 
does not outlaw contraceptives, does not allow bosses to prevent women 
from seeking birth control and does not take away a person's religious 
freedom.''
  In fact, what the decision does is focus on the fact that under the 
Religious Freedom Restoration Act, which was a law that was passed with 
overwhelming support in the House of Representatives and in this body--
in fact, by our count, as I understand it, over a dozen Democrat 
Members of the current Senate actually supported the Religious Freedom 
Restoration Act in some way. It was signed into law by President 
Clinton. So it used to be bipartisan that we would support religious 
freedom in this body. The notion that somehow Hobby Lobby as a closely-
held corporation would have to give up all their religious beliefs 
seems to me to be antithetical to what we supported on a bipartisan 
basis in this Congress, which is the religious freedom of Americans 
that is reflected in the First Amendment to our Constitution.
  In fact, contrary to the misleading rhetoric, the Hobby Lobby 
decision does not take away a woman's access to birth control. That 
existed before the Hobby Lobby decision and it exists today. That 
existed before ObamaCare and it exists today, thankfully.
  No employee is prohibited from purchasing any FDA-approved drug or 
device. Contraception remains readily available and accessible to women 
nationwide. Prior to ObamaCare passing in this body, over 85 percent of 
large businesses already offered contraceptive coverage to their 
employees.
  One thing that has not been mentioned is the ObamaCare mandate that 
has been the subject of the Hobby Lobby decision does not even apply to 
businesses that are under 50 employees in this country. So there are 
millions of women for whom the mandate that is addressed in the Hobby 
Lobby decision does not even apply to.
  For lower income women, there are five programs at the U.S. 
Department of Health and Human Services that ensure access to 
contraception for women, including Medicaid.
  In fact, more than 19 million women were eligible for government-
supported contraceptive assistance in 2010, and that has not changed.
  So for those who would distort the Court's decision and insist that 
we cannot stand for religious liberty while simultaneously ensuring 
that women continue to have safe, affordable access to birth control--
it is just not true. We can do both and we need to do both on behalf of 
the American people because people have deeply held religious beliefs, 
and it was so important to our Founding Fathers that they put respect 
for religion and protection of people's ability to choose what they 
believe in in the First Amendment to the Constitution.
  Americans believe strongly that we should be able to practice our 
religion without undue interference from the government. That goes to 
our character. So what happened in the Supreme Court's decision in 
Hobby Lobby is reaffirming that, but it did not say an employer will 
somehow now be making the decision whether a woman can have 
contraception. That is not what it said. In fact, employers have no 
right under the law to even know what my prescriptions are or any other 
woman's prescriptions are for contraception. So any suggestion to the 
contrary is entirely misleading.
  The decision applies to closely-held businesses whose owners have 
genuine religious convictions. In this case, the company's owner, the 
Green family, agreed to provide coverage for 16 of the 20 contraceptive 
methods that are required under ObamaCare, including birth control 
pills. So I want people to understand that. They only had a moral 
objection to the remaining four methods.
  In the narrow ruling, the Court agreed, based on the Religious 
Freedom Restoration Act--an act that was introduced into Congress by 
the late Senator Edward Kennedy from Massachusetts and then-Congressman 
Charles Schumer from New York. Again, it was supported by over a dozen 
of my Democrat colleagues at the time. They brought forth the law 
because they were concerned at the time about another Supreme Court 
decision which held that generally applicable laws that have nothing to 
do with religion could effectively prevent Americans from fully 
exercising their religious rights. And guess what? It passed a then 
Democrat-controlled House by voice vote and was approved by a Democrat-
controlled Senate by a vote of 97 to 3. There is not much that happens 
around here 97 to 3.
  When President Clinton signed it into law, he said: ``What this law 
basically says is that the government should be held to a very high 
level of proof before it interferes with someone's free exercise of 
religion.''
  In the Hobby Lobby decision, the government did not even try to meet 
that standard. They have tried to meet

[[Page 11970]]

that standard with other religious organizations, but they did not even 
try in this situation to contend what the Court found to be genuinely-
held religious beliefs on a very limited basis.
  There have been a lot of misrepresentations about the breadth of this 
decision. The Court's majority opinion explicitly states that the 
ruling does not ``provide a shield for employers who might cloak 
illegal discrimination as a religious practice.''
  Additionally, the Court said that ``our decision should not be 
understood to hold that an insurance-coverage mandate must necessarily 
fall if it conflicts with an employer's religious beliefs,'' meaning 
that someone must show a genuine religious objection. The government 
can overcome it if they are willing to show that they can do it in a 
less restrictive way. They did not even try in this case.
  Well, some Americans may disagree with the family who owns the Hobby 
Lobby stores. All Americans believe religious freedom is a fundamental 
right that should not be abridged. When President Clinton signed the 
Religious Freedom Restoration Act into law, he said:

       Our laws and institutions should not impede or hinder, but 
     rather should protect and preserve fundamental religious 
     liberties.

  I come to the floor today because I want people to understand this 
decision. Employers cannot tell you what kind of contraception you can 
have as a woman. Employers cannot even know what kind of contraception 
you have as a woman. That is protected under HIPAA laws, privacy laws 
that are very important.
  Finally, this notion that it is not my boss's business--of course an 
employer cannot tell you that you cannot go fill a prescription for 
contraception. I think that to suggest otherwise is really to distort 
what the facts of this case are.
  I believe we can protect people's fundamentally-held religious 
beliefs and provide women safe, effective access to contraception. 
Because of that, I will be introducing legislation on the Senate floor. 
That legislation would reaffirm that no employer can restrict an 
employee's access to contraceptives. Finally, it would also ensure that 
we look at ways to potentially give women greater access to 
contraceptives.
  The legislation I will be introducing would also ask the FDA to study 
whether women can purchase contraceptives over the counter and whether 
it would be safe and effective for adult women to be able to do so. So 
we should have the FDA look at this issue to see if women can perhaps 
have even greater access than they do right now.
  But the American people need to understand that the Hobby Lobby 
decision did not change women's access to contraceptives. In fact, 
under our HIPAA laws, no employer can know what kind of contraception 
you may have been prescribed or are using. No employer can tell you 
that you cannot fill a prescription for any kind of contraception that 
you think is appropriate and that your doctor thinks is appropriate for 
you.
  Finally, I would say our bill also does one other important thing; 
that is, it repeals the restrictions ObamaCare put on health savings 
accounts and flexible spending accounts. ObamaCare actually reduced the 
amount someone can put aside on a tax-free basis to pay for their own 
health care. ObamaCare also restricted the use of those accounts for 
purchase of over-the-counter medications. I have had many of my 
constituents complain to me about this. We would like to eliminate 
those restrictions and give people greater ability to set aside money 
on a tax-free basis to pay for their own health concerns, including 
over-the-counter medications.
  One thing I would say finally is that I have heard so much from my 
constituents about the concerns they have with ObamaCare. I have heard 
my colleagues on the other side of the aisle, who voted for ObamaCare, 
now come to the floor and complain about the Hobby Lobby decision. 
Well, I would argue that we are where we are today because they decided 
that ObamaCare was the way to go for health care in this country.
  I have heard from a lot of my both male and female constituents about 
the real concerns they have with ObamaCare that I hope we will debate 
on this floor. I have heard from people who lost policies they liked, 
who are paying more for coverage than they were before, have higher 
deductibles. I have had women write me about concerns that their 
employer is going to cut their hours because of ObamaCare. Talk about a 
bad mandate. It redefined the 40-hour workweek. It is now a 30-hour 
workweek. So people are losing hours.
  In my own State of New Hampshire, right now 10 of our hospitals are 
excluded from the exchange. We are not a very big State. It is a big 
deal. So some people have lost access to the doctor with whom they had 
a longstanding relationship or the hospital where they had their first 
child. Now, if they are expecting their second child and they are on 
the exchange, that hospital is excluded, and they are in a situation 
where ObamaCare is restricting women's rights as far as what hospital 
they can go to, when they could have gone there before.
  Those are the real issues as we think about what has happened with 
ObamaCare. There are so many other issues I could talk about, stories 
my constituents have written to me. But I would hope the American 
people understand that employers cannot restrict your access to 
contraception. We will reassert in our bill that no employer can do 
that. We will look at the FDA studying whether women can potentially 
have greater access to contraceptives in a safe and effective manner by 
looking at whether adult women can safely purchase contraceptives over 
the counter.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from New Mexico.
  Mr. HEINRICH. I rise to speak on the pending nominations.
  I appreciate the majority leader scheduling this vote to confirm Mr. 
Norman Bay to be a member of the Federal Energy Regulatory Commission.
  FERC is one of the lesser known but perhaps one of the most important 
independent agencies in the Federal Government. It has jurisdiction 
over interstate transmission of electricity, oil, and natural gas, as 
well as licensing of hydroelectric power.
  I believe Mr. Bay will be an outstanding member of the Federal Energy 
Regulatory Commission. I urge all of my colleagues to support his 
nomination today.
  Since 2009 Mr. Bay has been the Director of the Office of Enforcement 
at FERC, where he has gained extensive experience in the regulation of 
energy markets. The Office of Enforcement is responsible for market 
oversight and surveillance and for implementing the antimanipulation 
authority Congress enacted in the Energy Policy Act of 2005. This 
authority provided FERC new tools to combat the type of market 
manipulation that produced the devastating power crisis a decade ago 
across the West.
  Under Mr. Bay's leadership, FERC has increased transparency in its 
work, while bringing a number of enforcement actions that have helped 
protect the integrity of the energy markets and provided $300 million 
in relief to consumers--$300 million back into the pockets of energy 
consumers.
  He is a graduate of Dartmouth College and Harvard Law School and has 
had a long and distinguished career of public service. Before joining 
FERC, he taught law at the University of New Mexico. He also served as 
an assistant U.S. attorney and in 2000 was nominated by the President 
to be the U.S. attorney for the District of New Mexico. He was 
confirmed in that position by the full Senate by unanimous consent.
  Mr. Bay is an outstanding public servant with extensive experience in 
the field of energy markets. I am confident he will judiciously 
implement FERC's statutory responsibility of oversight of our Nation's 
energy infrastructure, competitive markets, and reliability.
  At his confirmation hearing in May, members of the Energy and Natural 
Resources Committee had a chance to

[[Page 11971]]

question Mr. Bay extensively on his work at the FERC and his views on 
regulatory policy. Senator Pete Domenici, a former chairman and 
longtime member of the energy committee from my home State of New 
Mexico, spoke at the hearing in strong support of Mr. Bay's nomination. 
Senator Jeff Bingaman, another former chairman of the energy committee 
from New Mexico, wrote a letter in support of his nomination.
  The Senate must give consent to the President's nominees to be 
members of the FERC. The Senate is fulfilling that responsibility with 
this vote today. However, there should be no misunderstanding--Congress 
gave the President alone the responsibility of designating a member of 
the Commission to be the Chairman of the Commission. The law enacted by 
Congress in 1977 remains very clear: The President, and not the Senate, 
determines who will serve as Chairman of the Commission.
  I believe Mr. Bay will be fair, balanced, pragmatic, and a consensus-
oriented member of the FERC. He will decide cases on the merits, based 
on the facts, based on the law and on the record.
  I am pleased to support the nominations of both Commissioner LaFleur 
and Mr. Bay to be members of the Federal Energy Regulatory Commission. 
I hope the Senate will vote today to confirm them both.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I ask unanimous consent to speak for up to 
10 minutes and that it not be counted against the majority's time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              The Economy

  Mr. THUNE. Mr. President, last week the President was in Denver, CO, 
where he talked about the economy. He said this: ``By almost every 
measure, we are better off than when I took office.'' That is quite a 
statement. ``By almost every measure we are better off than when I took 
office.'' I know a lot of Americans struggling with high health care 
bills who might disagree with that because the truth is that very few 
Americans are better off than they were 5\1/2\ years ago. Household 
income has plummeted by more than $3,300 since the President took 
office. Meanwhile, the price of everything, from milk to the 
refrigerator to store it in, has risen. Gas prices have nearly doubled 
since the President took office. College costs have soared. Of course, 
family health insurance premiums have increased by nearly $3,000 per 
family.
  Combine reduced income with higher prices and you get a reduced 
living standard. Under the Obama Presidency, families who were once 
comfortably in the middle class are now struggling to make ends meet. 
Other Americans have dropped out of the middle class altogether.
  There are 3.7 million more women in poverty today than there were 
when the President took office. Mr. President, you want to talk about 
the war on women?
  When the President took office, 33 million Americans were on food 
stamps. Today more than 46 million Americans receive food stamps. 
Americans struggling financially have had few opportunities to get 
ahead because the Obama economy has offered very little in the way of 
opportunity.
  The President likes to talk about the jobs the economy has gained 
recently. But what he does not say is that 5 years after the recession 
officially ended, our economy is still posting recession-type levels of 
unemployment.
  Back in 2009 the President's economic advisers confidently predicted 
that unemployment would fall below 6 percent in 2012. Well, here we are 
2 years later. We are still not below 6 percent unemployment even after 
a historic expansion of monetary policy and the largest fiscal stimulus 
since World War II. The only reason the unemployment rate is not higher 
is because so many Americans have given up looking for a job entirely 
and dropped out of the workforce. The labor force participation rate 
currently stands at 62.8 percent--near a 36-year low. To put it another 
way, if the labor participation rate today were what it was when the 
President took office, unemployment would not be a little over 6 
percent, it would be 10.2 percent. That is how many people have 
completely dropped out of the labor force and are no longer even 
looking for a job.
  Then there are the millions of Americans who are working part time 
because they cannot find a full-time job. The Labor Department reported 
that the economy lost more than half a million full-time jobs in June 
and gained almost 800,000 part-time jobs. That is not a good statistic. 
It is the rare part-time job that pays all the bills and gives 
financial stability. Americans need more full-time jobs, not more part-
time jobs.
  They also need the opportunity for higher paying jobs, but that is 
another opportunity which is in short supply in the Obama economy. 
Forty-one percent of the jobs lost during the recession were high-wage 
jobs, but just 30 percent of the jobs recovered have been high-wage 
jobs. Similarly, 37 percent of the jobs lost in the recession were 
midwage jobs, while just 26 percent of the jobs gained since the 
recession have been midwage jobs. Meanwhile, while just 22 percent of 
the jobs lost during the recession were low-wage jobs, 44 percent of 
the jobs gained since the recession have been low-wage jobs.
  We are trading high-wage jobs for low-wage jobs, full-time jobs for 
part-time jobs. That is the reality that many Americans are 
experiencing. The Obama recovery, however, has been producing low-wage 
part-time jobs--not the types of jobs that Americans need for a future 
of financial security and stability.
  No policy is threatening Americans' economic future more than 
ObamaCare. As every American knows, ObamaCare has failed to deliver on 
its promise of making health care more affordable. The President 
promised that his health care law would reduce premiums by $2,500. 
Instead, premiums have risen.
  Millions of Americans had their insurance plans cancelled and were 
told that their new plans would cost more--sometimes much, much more. 
One constituent wrote to tell me that the cheapest plan she could find 
for her family of four would cost $17,000. Another wrote to tell me 
that his insurance plan was cancelled due to ObamaCare and the cheapest 
bronze plan he could find was $987 a month--more than double what he 
was paying before. On top of that, the plan had a higher deductible and 
significantly higher cost-sharing requirements than his old plan.
  I am sure every one of my colleagues--Democrats and Republicans--has 
received letters just like this. Our constituents are hurting. What 
middle class family can afford to pay $17,000 a year in insurance or 
double its health care premiums from the year before?
  ObamaCare is placing an immense burden on middle-class families. The 
huge premium hikes that many Americans are facing are having a real 
impact on families' budgets. Money eaten by health care costs is money 
that can't be spent on a daughter's college education or a new car to 
replace the failing one or on repairs for the roof--and there is 
seemingly no end to ObamaCare's penalties.
  In addition to hiking insurance premiums, ObamaCare is also 
encouraging companies to drop spousal coverage from their health plans. 
UPS and the University of Virginia, for example, have already dropped 
spousal coverage because of ObamaCare. Women are particularly affected 
by this since, as the Wall Street Journal reports, they tend to be the 
ones being dropped from employer-sponsored health care plans.
  Then there is ObamaCare's marriage penalty. A woman who qualifies for 
a tax subsidy to help her purchase insurance could lose that subsidy if 
she gets married--even if both she and her husband qualified for the 
subsidy when they were single.
  ObamaCare isn't just hiking Americans' health care bills, it is also 
damaging their economic prospects. Thanks to the 30-hour workweek rule, 
ObamaCare is helping to drive the surge in part-time employment. 
Businesses that couldn't afford to give

[[Page 11972]]

health insurance to workers working more than 30 hours have been forced 
to reduce their employees' hours and, by extension, their wages. Sixty-
three percent of those affected by this provision are women.
  Then there is the employer mandate, which is discouraging wage growth 
and making it more difficult for employers to grow their businesses and 
to hire new workers. When employers are forced to pay for benefits they 
can't afford, they often have no choice but to reduce wages or cancel 
raises and abandon plans for growing their businesses.
  Then there are the other ObamaCare provisions that discourage job 
growth, such as the tax on medical devices such as pacemakers and 
insulin pumps, which has already been responsible for the loss of 
thousands of jobs in the medical device industry.
  The last thing that we need right now in this weak economy is the 
kind of widespread devastation ObamaCare is causing. Americans are 
being hit from both sides. ObamaCare is raising their medical bills and 
it is destroying their job opportunities.
  If the President were serious about trying to help middle-class 
Americans, he would be looking at where his health care law went wrong 
and at least supporting fixes for its most damaging provisions.
  If Democrats were serious about fixing health care and helping the 
economy, they would be taking up Senator Collins' Forty Hours is Full 
Time Act, which would fix the ObamaCare 30-hour workweek rule and put 
Americans back to work or they would support my bill to eliminate the 
employer mandate for schools, colleges, and universities, so that these 
institutions aren't forced to cut wages or to eliminate positions.
  Democrats thought if Americans found out what was in ObamaCare and 
what it meant for them, they would come to like it. Well, Americans 
have found out what is in the President's health care law, what it 
means for them, and they don't like it.
  ObamaCare is hurting American families, it is hurting our economy, 
and it is time to start over and replace this bill with real health 
care reform, the kind that will lower costs, that will increase choice, 
and that will put Americans back in charge of their health care.
  Mr. PORTMAN. Mr. President, I rise in support of the nomination of 
Cheryl LaFleur to serve as a commissioner on the Federal Energy 
Regulatory Commission, and in opposition to the nomination of Norman 
Bay to serve as a commissioner on the Federal Energy Regulatory 
Commission.
  On May 20, the Energy and Natural Resources Committee, of which I am 
a member, held a hearing on these two nominations. I had questions 
regarding Mr. Bay's qualifications prior to that hearing, and they were 
not allayed. If anything, they were reinforced. Mr. Bay's experience in 
the energy field consists of his service over the past 5 years as 
Director of the Office of Enforcement at the FERC, a tenure which has 
been marked by that office's controversial theories of market 
manipulation and concerns by long-time industry experts about due 
process. Mr. Bay has 5 years of enforcement experience, but he has no 
regulatory experience. By contrast, Commissioner LaFleur, currently 
serving as the Acting Chairman of the FERC, has 5 years of experience 
on the FERC and decades of experience in the energy sector, including 
as a State utility commissioner. Yet we are being asked to demote 
Commissioner LaFleur to commissioner and replace her with an unproven 
and arguably less qualified candidate.
  But most important from my perspective is whether a nominee will 
address the key responsibilities assigned to the agency to which he or 
she is being nominated. At FERC, job one with respect to the electric 
sector is assuring just and reasonable electric service in interstate 
commerce, which Congress has found for the past 80 years to be in the 
public interest. Assuring the reliability of such service is an 
important task that Congress explicitly made part of FERC's 
responsibilities nearly a decade ago.
  At our May 20 hearing, I asked Mr. Bay whether he agreed with the 
developing consensus that baseload power plants, the ``always on'' 
energy resources vital to reliable operation of the grid, deserve 
additional consideration for the irreplaceable reliability benefits 
they provide. Mr. Bay answered that he looked forward to reviewing 
comments on the issue. I then asked whether as a commissioner he would 
look at the cumulative effect of EPA rules that, by various estimates, 
have resulted in the announced closure of 40,000 to 70,000 megawatts of 
coal-fired power plants across the country, many of them in Ohio, the 
closure of which has raised strong concerns about maintaining electric 
reliability in many parts of the country. He answered that if 
confirmed, he would be willing to discuss the issue with his colleagues 
to see if consensus could be reached.
  Mr. President, these are simple questions that go to the heart of 
FERC's mission. On both, Mr. Bay gave non-answer answers that are the 
basis for substantial concern. Either you agree that something needs to 
be done to keep power plants running that are vital to maintaining a 
reliable electric system, or you don't. Either you are concerned that 
EPA's rules, which even the environmental groups attribute to 
shuttering more than 68,000 megawatts of coal-fired generation, need to 
be evaluated for their electric reliability impacts, or you don't.
  A presidential nominee deserves the benefit of the doubt, but in the 
case of Mr. Bay, whose nomination has been rushed to the floor, the 
doubts remain too strong.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.


      Unanimous Consent Agreement--Calendar Nos. 894, 704, and 508

  Mr. REID. Mr. President, I ask unanimous consent that following the 
vote on confirmation of Executive Calendar No. 842, the Senate remain 
in executive session and consider Calendar Nos. 894, Nealon; 704, Wood; 
and 508, Jaenichen; that there be 2 minutes for debate equally divided 
between the two leaders or their designees prior to each vote; that 
upon the use or yielding back of time, the Senate proceed to vote 
without intervening action or debate on the nominations in the order 
listed; that any rollcall votes, following the first in the series, be 
10 minutes in length; that the motions to reconsider be considered made 
and laid upon the table, with no intervening action or debate; that no 
further motions be in order to the nominations; that any statements 
related to the nominations be printed in the Record; that the President 
be immediately notified of the Senate's action and the Senate then 
resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. For the information of all Senators, we expect the 
nominations considered in this agreement to be confirmed by voice vote.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I wish to make a few comments about 
nominees that are before the Senate for confirmation and to thank 
Members on both sides of the aisle for working together to try to move 
forward two very important nominees for FERC.
  First, let me say there has been some criticism of one of the 
nominees from some Members of the other party and, of course, everyone 
is entitled to their opinion; that is what the Senate is for. But I 
would like to make sure that the Senate record reflects an opinion of 
someone whom I admire greatly and I believe is very admired--
significantly admired--by every Member of this Senate, and that is the 
opinion of Senator Domenici, the Republican chair of the Energy and 
Natural Resources Committee for many years and a long-serving Senator 
from the State of New Mexico.
  Senator Domenici, it may not be clearly understood, actually came to 
the energy committee to testify on behalf of Norman Bay.
  His testimony was one of the most artful and compelling I have seen 
in my days here--which are now quite long at almost 18 years--and 
unusual in the sense that he read from no

[[Page 11973]]

script, spoke from the heart, and spoke to Democratic and Republican 
members of our committee. This is some of what he had to say:

       I am pleased to provide a strong statement of support to 
     the Senate Energy and Natural Resources Committee on behalf 
     of Norman C. Bay. I first met Norman in early 2000, when he 
     was nominated to be the U.S. Attorney in the District of New 
     Mexico. I supported his nomination then and I support his 
     nomination now to the Federal Energy Regulatory Commission . 
     . .
       He was a good U.S. Attorney--fair, capable, and non-
     partisan--and, with my support, he remained in office as U.S. 
     Attorney until 2001.

  He continues:

       In July 2009, Norman became the Director of the Office of 
     Enforcement (OE) at FERC. This is a big job, because among 
     other things OE must administer the anti-manipulation 
     authority of the Energy Policy Act of 2005--a bill that I had 
     authored when I was the Chairman of the Senate Committee on 
     Energy and Natural Resources and one that passed with wide 
     bipartisan support. The anti-manipulation authority was 
     intended to give FERC the tools to combat the type of 
     manipulation we saw in the Western Power Crisis from 2000 to 
     2001. I am pleased to hear that FERC has brought a number of 
     significant anti-manipulation cases and that the EPAct 
     authority I gave to FERC has been put to good use to protect 
     consumers, as well as the integrity of the wholesale natural 
     gas and power markets.

  I could not think of a more compelling person to have in your corner 
than the former Republican chair of the energy committee in support of 
the Bay nomination.
  Now, there are a handful of Members on the other side that have 
opposed every nominee put forward by President Obama because their 
agenda is very different. It is a political agenda. But on policy, 
Senator Pete Domenici's testimony goes a long way in his support of a 
man who he believes is extremely qualified for the job to which the 
President has nominated him.
  In addition to the compelling testimony of Senator Domenici, which 
was very influential in my final decision to support this nominee, I 
also want to present for the record the letter from the Republican 
Governor of New Mexico, Susana Martinez, who let me know personally 
that she would have loved to have been there personally to testify on 
behalf of Norman Bay but was unable to do so because of her schedule. 
She goes on to write a strong letter of recommendation, which is in the 
record of our committee. She says:

       I am certain that Norman has been dedicated in his efforts 
     to protect consumers, has been fair and balanced in his 
     approach, and has focused on doing the right thing on behalf 
     of the public interest.
       For all those reasons, I hope the Committee on Energy and 
     Natural Resources will approve Norman's nomination to the 
     Federal Energy Regulatory Commission.

  These are just a few of the strong testimonials that led me to 
finally consent to my support of Norman Bay, but I did so with the 
support of the Presiding Officer as a member of the Energy and Natural 
Resources Committee, making sure that the current chair, Cheryl 
LaFleur, could stay on for an additional length of time. I would have 
liked another year. Some people wanted 3 months, some people wanted 6 
months, and some people wanted a full term. But we settled on a 9-month 
compromise--which is actually the fundamental nature of our business in 
the Senate.
  It has been lost in the last couple of years, but I continue to be an 
optimistic believer that a good compromise can help us move the country 
forward, reduce rancor, hold people together, and make some decisions 
that are so important for the people who we are trying to serve.
  FERC is not an insignificant entity. FERC, given the power by us, is 
the guardian of the public interest in our natural gas and electricity 
markets, something that Louisiana knows a lot about--natural gas and 
electricity markets.
  We produce a tremendous amount of oil and gas for this Nation, and we 
consume a lot of oil and gas as producers of chemicals and other 
products that use natural gas as a feedstock. We are proud of our 
industry, and I would never casually support members on FERC if I 
didn't believe they were prepared to do this job and to do it well.
  In particular, with the testimony from the former Republican chairman 
of the committee and a current serving Republican Governor for Norman 
Bay, I feel confident, based on his background, that he could do a good 
job, after working with Cheryl LaFleur for 9 months, which is the 
agreement that the White House and others have made.
  Let me talk about Cheryl LaFleur for a moment. She is a graduate of 
Princeton. She is able, she is competent, and she has served as a 
member of FERC. She, in my view, has also been doing a spectacular job. 
She will continue to serve as chair of FERC for the next 9 months--
should she be confirmed today--and will continue with the members of 
FERC to try to provide reliable power and electricity to our country--
being fair and protecting the public interest.
  This is a very complicated field of law and policy, as we know. This 
is not an easy part of the law to interpret.
  There are many different electricity markets, there are many 
different ways to supply it. They are not-for-profits, they are 
municipals, and they are public utility companies. They all have 
pipelines and issues that have to go before FERC, and there are over 
2,000 people who work for this agency. It may not be a household word, 
but it affects every household in America. So Cheryl LaFleur will 
remain, at my request, as chair for 9 months. Norman Bay will come on 
and train, if you will, under her leadership, and I think grow into the 
role as a policymaker. He clearly is qualified--by the demonstration of 
the letters I have put in.
  I thank the Presiding Officer for the leadership role he has played 
in outlining that path forward, trying to broker a compromise between 
people who wanted to do it very differently.
  We had opposition on both sides for what is actually happening today, 
as we know, but we worked with Democrats and Republicans, trying to 
find a way forward, honoring the right of the President to make his 
nominations and still doing the right thing by FERC and the country. I 
personally think we have achieved that. I wanted to put that on the 
record before we vote. I understand the vote should be called any 
moment now.
  I yield the floor.


                         Vote on Bay Nomination

  The PRESIDING OFFICER. Under the previous order, all postcloture time 
has expired. Under the previous order, there will now be 2 minutes of 
debate prior to a vote on the Bay nomination.
  Ms. LANDRIEU. Mr. President, I ask unanimous consent to yield all 
time back for both sides.
  The PRESIDING OFFICER. Without objection, all time is yielded back.
  Under the previous order, the question is, Will the Senate advise and 
consent to the nomination of Norman C. Bay, of New Mexico, to be a 
Member of the Federal Energy Regulatory Commission for the term 
expiring June 30, 2018?
  Ms. LANDRIEU. I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Schatz) is 
necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander) and the Senator from Tennessee 
(Mr. Corker).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay'' and the Senator from Tennessee (Mr. 
Corker) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 45, as follows:

                      [Rollcall Vote No. 224 Ex.]

                                YEAS--52

     Baldwin
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heller
     Hirono
     Johnson (SD)
     Kaine

[[Page 11974]]


     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--45

     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heitkamp
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     King
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Walsh
     Wicker

                             NOT VOTING--3

     Alexander
     Corker
     Schatz
  The nomination was confirmed.


                       Vote on LaFleur Nomination

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate prior to a vote on the LaFleur nomination.
  Mr. JOHANNS. Mr. President, I yield back all time and ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Cheryl A. LaFleur, of Massachusetts, to be a member of the Federal 
Energy Regulatory Commission for the term expiring June 30, 2019?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Schatz) is 
necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander) and the Senator from Tennessee 
(Mr. Corker).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea'' and the Senator from Tennessee (Mr. 
Corker) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 90, nays 7, as follows:

                      [Rollcall Vote No. 225 Ex.]

                                YEAS--90

     Ayotte
     Baldwin
     Barrasso
     Begich
     Bennet
     Blumenthal
     Blunt
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Coons
     Cornyn
     Crapo
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Murkowski
     Murphy
     Murray
     Nelson
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Rockefeller
     Rubio
     Sanders
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--7

     Cardin
     Gillibrand
     Mikulski
     Moran
     Roberts
     Schumer
     Walsh

                             NOT VOTING--3

     Alexander
     Corker
     Schatz
  The nomination was confirmed.

                          ____________________