The Senate Energy Bill Circa 2002

As calendar year 2002 winds down, I’m finishing my second year in the U.S. Senate. I work for Senator Harry Reid, the Majority Whip, and soon to be Minority Whip – but still the number two democrat in the Senate. In my first year on the Hill, I learned the legislative process. This year, I got to put that knowledge into action. I staffed Senator Reid on the Energy Bill, which was on the floor of the U.S. Senate from March 5 to April 25, 2002, one of the longest debates in Senate history. In a sense, the energy bill was largely rewritten on the floor of the Senate because it wasn’t reported out of committee. It was placed on the Senate calendar under Rule XIV. But I’m getting ahead of myself, so let me begin by discussing the need for energy legislation and the legislative history of the Senate energy bill circa 2002.
Electricity generation, transmission and distribution in the U.S. is largely governed by the Public Power Act of 1935 and the Public Utilities Regulatory Policies Act of 1978. The last comprehensive energy bill signed into law was the Energy Policy Act of 1992 (EPACT). Since the passage of EPACT, the business of supplying electricity had dramatically changed with a desire by many to deregulate the market, much like telecommunications. The California energy crisis was the straw that broke the camel’s back and cried out for legal and regulatory reform that (1) more closely reflected the realities of the electricity market and (2) ensured that these markets function properly. Congress had a clear duty to address this situation as part of comprehensive energy legislation. To leave electricity legislation for another day would be to ensure that the problems faced now in the West might be replicated across the country. As always, Congress needed to provide a legislative solution that didn’t interfere unduly in the markets.
Throughout the 107th Congress that covered calendar years 2001 and 2002, many bills dealing with energy were introduced in the Senate or received from the House. Typically, these bills are referred to the committee of jurisdiction before they are placed directly on the Senate calendar to be debated, amended, and passed. For an energy bill, the relevant committee is Energy and Natural Resources, which was chaired by Senator Bingaman. Amazingly, any Senator can object to a bill being referred to committee and can place it directly on the legislative calender under Senate Rule XIV. Such was the case for the Senate energy bill. Senators do not use this procedure very often, in large part out because of respect that they have for their committee system and for the contribution that committees make in screening and evaluating the measures that are refereed to them. A measure directly placed on the calender under Rule XIV is not guaranteed floor consideration.
To first order, action on a bill can only proceed at the discretion of the Majority Leader. Although the Majority Leader decides when to bring legislation to the floor, world events often dictate the schedule. The Congress crafted a Homeland Security bill, which was debated in the Senate from September to November. This legislation took center stage for obvious reasons. Recently enacted legislation on Corporate Accountability languished in committee and never would have made it to the floor, except for all the corporate scandals on Wall Street. In light of events in the Middle East, many Senators considered energy a national security issue that demanded immediate attention. As Victor Hugo said, “There is nothing more powerful than an idea whose time has come.”
The life of a staffer during debate on a major bill is tough. It involves many exhaustive days and late nights. A staffer prepares floor statements and fully vets issues for their bosses. Staffers were prepared for all the important and controversial issues, e.g., drilling in the Arctic Wildlife Refuge, improved fuel efficiency standards, and climate change, but the 1000-page Senate energy bill contained countless smaller provisions that needed to be understood and interpreted in light of a Senator’s constituents and prior voting record. Examples of these lesser provisions included hydraulic fracturing for extraction of coalbed methane, transparency in the trading of energy derivatives, and research and development for improved catalytic converters. A staffer needs to find enough time to do their homework and still be on the Senate floor, where staffers sit on benches in the back corners of the chamber. You’re there to support your boss, but there is also a great deal to learn from other staffers as well as leadership aides who often have a great deal of insight into how events might unfold.
A bill is broken into different sections or “Titles,” and the electricity title in the energy bill was extremely complex and time consuming. Each provision needs to be evaluated from many different perspectives. For example, what recommendation do I make to Senator Reid on the reliability provisions of the electricity title? What’s in the best interests of Nevada? How do the Western governors view the issue? How about NERC – the North American Electric Reliability Council – or NARUC – the National Association of Regulatory Utility Commissioners? What’s leadership’s (meaning the party’s) position on the issue? If an issue is voted along party lines, it’s always important to know which Democrats and Republicans will cross party lines, which largely determines its outcome in a Senate that had 50 democrats, 49 republicans, and one independent. Make no mistake, Senators are extremely knowledgeable about issues and typically know how they are going to vote. In the final analysis, Senators are elected and not staffers. But it’s still the responsibility of the staffer to make certain their bosses know both sides of every issue, as well as its nuances and subtleties.
Senator Reid is the Whip and is always on the floor. Just turn on CSPAN-2 and you’ll see what I mean. He is often called upon to speak on an issue, and it was my job along with other Reid staffers to prepare him. Senator Reid has many experienced and extremely knowledgeable Legislative Assistants, who always provided me with guidance and insight. For example, they might suggest that I speak to a certain staffer, lobbyist, or organization. When a bill is on the floor, you don’t have time to fully research any issue, so you’re dependent on writeups and white papers, which are usually provided by Senate offices that have the greatest interest in an issue or by the Democratic Policy Committee. But that information is being made available in real time during the debate and not in advance.
If a bill is “reported out” of committee, it typically means that most of its provisions either enjoy bipartisan support or at the very least a majority along party lines. The committee process provides a preview or scorecard of what’s likely to happen on the floor. Because the energy bill came directly to the floor under Rule XIV, things were a bit more uncertain. The bill brought to the floor is refereed to as the “underlying legislation.” It’s the starting point. If you want to change the bill, you need to amend it. Normally it takes 51 votes to amend a bill, but it may take 60 votes to override a threatened filibuster or a budget point of order. The bottom line is that a provision only stays in the bill if one side or another can demonstrate they have the necessary votes. If not, then a series of amendments will ensue until either side gets the votes. Each side will revise their provision by making changes to attract other Senators. For example, if renewable energy is being debated, an amendment might be expanded to include additional provisions for hydropower that will hopefully attract Senators from the Northwest. Nobody has a pat hand in the process. You can’t simply defend the underlying legislation. If a provision in the bill doesn’t have 51 votes, it will eventually fail.
It’s also worth pointing out that not all debates are along party lines. During the debate on fuel efficiency, it was Senators from the Midwest representing the automakers that opposed improved fuel efficiency standards. It wasn’t an issue of Democrats versus Republicans. Sometimes it’s simply regional, East versus West. Sometimes Senators offer an amendment and then withdraw it, just to make a point and get their arguments in the Congressional Record. Sometimes Senators offer an amendment to get their colleagues on record and to establish a legislative history. For example, an amendment was offered for a Renewable Portfolio Standard requiring utilities to supply 20% of their electricity from renewable energy resources by 2020. It got 29 votes, far short of the necessary 51, but the vote was viewed as a respectable showing on a controversial provision. In the final bill, a 10% Renewable Portfolio Standard was adopted.
In my opinion, the Senate Energy bill circa 2002 was not a great or even a good bill. The only thing that could have reduced America’s dependence on foreign oil was improved fuel efficiency standards for cars and light trucks, and those provisions were defeated. Drilling in the Arctic Wildlife Refuge doesn’t change the energy balance equation. In addition, the electricity title in the Senate bill had been criticized for its lack of consumer protections. The best part of the Senate energy bill was its tax provisions for renewable energy, alternative vehicles, and energy efficiency.
In the summer of 2001, the House passed its own energy bill. In late July of 2002, a House-Senate conference began the daunting job of reconciling a 1000-page Senate bill with a 500-page House bill that did not include an electricity title. Senator Reid was a conferee, so I was heavily involved in the conference. Unfortunately, the House-Senate conference was unable to report out a bill. More on that in a future report.
The main purpose of a Congressional Fellowship is to learn the legislative process. I learned a great deal in my second year on the Hill by staffing Senator Reid on the Senate energy bill. The process of making legislation is not for the naive or idealistic, and it’s not perfect and precise like research endeavors strive to be. It’s politics, people, process, and patience. Major energy legislation was only passed a few times in the 20th century, and not in 2002. We’ll try again in the 108th Congress.
Peter Winokur, the NPSS Past President, can be reached at the Office of Senator Harry Reid, 528 Hart Senate Office Building, Washington, DC 20510; Phone: +1 202 224-3542; Fax +1 202 224-7327; E-mail: p.winokur@ieee.org.