Executive Session

Floor Speech

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Ms. MURKOWSKI. Madam President, I have come to speak about the two nominees on the executive calendar who are before us this afternoon. Norman Bay and Cheryl LaFleur are nominated to be commissioners on the Federal Energy Regulatory Commission, FERC, an increasingly critical, independent regulatory commission.

As the Senate has considered these nominations, there has been kind of a weird drama that has played out throughout the entire community that follows the FERC and, as I understand, the agency itself has been really very distracted by it. Many are concerned the wrong person is set to take over as chair of the FERC and that the Commission is at risk of losing its reputation for objectivity. So for the benefit of Senators who are not on the energy committee and for members of the public who have not followed the controversy surrounding these nominees, let me provide a little bit of perspective this afternoon.

Both nominees have been serving at the FERC. Ms. LaFleur currently leads the agency as its chair. She has done so with distinction for the better part of a pretty difficult year. This is a year that has brought about the polar vortex and challenges to bulk power system reliability. The other individual, Mr. Bay, is an employee. He is the director of the agency's Office of Enforcement. He was appointed to that post by its somewhat controversial former chair, John Wellinghoff of Nevada.

If confirmed, Mr. Bay will become the first FERC employee in the agency's history who would go directly and immediately to the commission itself, despite just 5 years of relevant experience. Furthermore, Mr. Bay will not only be elevated to the post of commissioner; President Obama has announced that Mr. Bay will be designated as chairman after his confirmation. That means that Ms. LaFleur, the FERC's only female commissioner, will be demoted when Mr. Bay takes over as chair. How soon Ms. LaFleur's demotion will take place is unclear at this moment.

At the energy committee's business meeting to consider these nominees, there was a lot of talk about a deal that would allow Ms. LaFleur to remain as chair for a period of time. It was suggested that this would give Mr. Bay some much needed on-the-job training as a rank and file commissioner. So there was a lot of discussion going back and forth. I was certainly part of that discussion. But talk of a deal and confirmation of a deal, giving the assurances that certainly this Senator has sought and yet was not given--talking about a deal and getting a deal are two different things.

So as we discuss where we are with these nominees, I think it is important to recognize that even if Ms. LaFleur stays on for a period of months--whether it is 9 months as some have suggested the deal is or a different period of time--what we understand is that Ms. LaFleur will only be allowed to continue in an acting capacity.

So stop and think about this. We have President Obama who has nominated Ms. LaFleur twice for high office, and despite what I think has been her distinguished service as a commissioner and as chair of the FERC, the White House dismisses her as an acting chair. The administration reportedly has limited her authority even to hire staff. As some have suggested, this is just a technicality and this is what happens within the Commission. That is not my understanding at all. I would view it as an affront. If one is going to be the chair, one should have the full authorities of the chair.

Even though I disagree with ``Acting'' Chair LaFleur on some key policy matters, by all accounts, from both Republicans and Democrats, she is doing a good job. She is fair. She seeks balance. She has the temperament I think we need for this commission. She has the personal qualities of leadership we look for. She clearly has the experience. She has 25 years' worth of experience, in fact. I certainly hope she will be easily confirmed this afternoon. In fact, I hope Chair LaFleur's bipartisan support has not hurt her prospects.

Chair Landrieu observed during the committee's consideration of these nominees that Ms. LaFleur's renomination ``was not a sure thing just a couple of months ago.'' But we have to ask: Why not? Why wasn't the renomination of the only woman serving as a FERC commissioner--a Harvard-educated Obama appointee from Massachusetts--why wasn't she a sure thing from the get-go? Was it her bipartisan appeal? I would certainly hope not. Was it her good work as a chair? Again, I hope not. To me, those are reasons one would choose her to lead the FERC, not someone else.

One hint came from our majority leader, Senator Reid. He recently told the Wall Street Journal that Ms. LaFleur ``has done some stuff to do away with some of Wellinghoff's stuff.'' Now, he didn't really define what ``stuff'' that was and didn't acknowledge that much of Mr. Wellinghoff's ``stuff'' was either controversial or incapable of withstanding legal challenge.

Before we turn to Mr. Bay and his unprecedented promotion from Director of the Commission's Office of Enforcement in the face of Ms. LaFleur's demotion, let's discuss the agency the White House proposes he would lead for just a second. Why does the chairmanship of the FERC matter so much?

Well, the Presiding Officer sits on the energy committee. She knows. She is watching this. She is looking at the issues of reliability. In the energy world, FERC regulates ``midstream everything.'' The chairman is its CEO, and under his or her leadership, FERC regulates interstate natural gas and oil pipelines, LNG import and export facilities, the sale of electricity at wholesale, the transmission of electricity in interstate commerce--basically the Nation's bulk power system, practically speaking, its high voltage transmission networks, also the reliability of the bulk power system, the licensing of hydroelectric facilities and the safety of dams. The list goes on and on.

One further example is the safeguarding of sensitive information about our critical energy infrastructure--information that was compromised by FERC during the tenure of former Chairman Wellinghoff. That series of events is now subject to an ongoing inquiry by the inspector general of the Department of Energy, and it is a breach that Ms. LaFleur has vowed will not happen again.

Given the significance of this agency, let's consider Mr. Bay. So, beyond the demotion of Ms. LaFleur, and beyond his lack of relevant experience, what is causing me pause? To begin, there are questions about the fairness and transparency of the functioning of the FERC Office of Enforcement during Mr. Bay's tenure there. I haven't resolved those questions, but I know others are looking at them. Senator Barrasso has called attention to some of the questions. He has called for an independent review of the facts in dispute.

Second is the question of the circumstances under which Mr. Bay would recuse himself from at least 43 different matters, including some high profile matters that have been pending in the Office of Enforcement on his watch. But, unfortunately, Mr. Bay apparently doesn't see a need to recuse himself from these proceedings.

Third are the answers that Mr. Bay provided to questions from those of us on the energy committee. At best, many were unclear and, at worst, his responses were simply evasive.

Finally, I keep coming back to the deal--the waiting period that was needed to attract enough support on the Democratic side to report Mr. Bay's nomination from committee. So we 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.

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