Don Nickles

Mr. NICKLES

Mr. NICKLES. Reserving the right to object, let me clarify something with the majority leader. The majority leader made a request, or we discussed one on Thursday evening, I think, at 6:30. The major difference between this request and the one on Thursday is, No. 1, the limit on debate on the bill is limited to 3 hours and there was not a time limit?

Mr. NICKLES

Mr. NICKLES. I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on June 29, 1999, by the President of the United States: 1. Tax Convention with Venezuela (Treaty Document No. 106-3); I further ask that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Monday, June 28, 1999, at 3:45 p.m. to hold a hearing.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Washington (Mr. Gorton), the Senator from Arkansas (Mr. Hutchinson), the Senator from Oklahoma (Mr. Inhofe), the Senator from Vermont (Mr. Jeffords), the Senator from Florida (Mr. Mack), and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Washington (Mr. Gorton), the Senator from Arkansas (Mr. Hutchinson), the Senator from Oklahoma (Mr. Inhofe), the Senator from Vermont (Mr. Jeffords), and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES. I announce that the Senator from Washington (Mr. Gorton), the Senator from Arkansas (Mr. Hutchinson), the Senator from Oklahoma (Mr. Inhofe), the Senator from Vermont (Mr. Jeffords), and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Washington (Mr. Gorton), the Senator from Arkansas (Mr. Hutchinson), the Senator from Oklahoma (Mr. Inhofe), the Senator from Vermont (Mr. Jeffords), the Senator from Florida (Mr. Mack) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Texas (Mr. Gramm) is necessarily absent.

Mr. NICKLES. Mr. President, I appreciate the comments of my colleague. My point is that rule XVI is not a Democrat rule or a Republican rule. It is a rule that has been abused in the past, and it ought to be reinstated. It is a rule that would help us do our Nation's business and finish our appropriations bills on time. We should leave the legislating up to the appropriate authorizing committees. If the authorizing committees aren't passing legislation we want, maybe we ought to give them a jump start. It goes through the appropriate legislative process. I compliment Senator Crapo from Idaho, who suggested that we should do this. He is right. Many of us suggested that we do this long before we came into this dilemma. I told my friend and colleague from California this amendment doesn't belong on the agriculture appropriations bill. Granted, if you want to try to pass the so-called Patients' Bill of Rights, piece by piece, or body part by body part, on an agriculture appropriations bill, you are wasting everybody's time. There is no way in the world an agriculture appropriations bill is going to come back with a Patients' Bill of Rights. Maybe you are making political statements, but you are not legislating effectively. It is not going to become law. The majority leader proposed that we will give you basically a week, 4 legislative days, with time limits on amendments, which nobody has seen on either side. That is a tremendous gift. My colleague from Delaware is probably saying: I can't believe they didn't agreed to that. Many people on the other side are saying: I can't believe you haven't agreed. I am not sure that offer is still going to be out here. I am troubled by that offer, I tell my colleague from South Dakota. I will tell you, there is no way in the world you are going to get another UC after today. I will be shocked if you get one that will be this generous in time, giving 4 legislative days to this particular issue. I think I heard my colleague from South Dakota say: Wait a minute, we are being squeezed out and we haven't had the opportunity to bring up these amendments. I think the majority leader, in making this request yesterday, was being very sincere in saying, hey, this is a way we can do this--not piece by piece, not on legislative appropriations bills, but basically we would give you 4 days beginning on July 12. I think that was a very generous offer. I wanted our colleagues to know that. If it is refused, then obviously the Patients' Bill of Rights is not going anywhere this session. Mr. BIDEN addressed the Chair.

Mr. NICKLES. The Senator is correct.

Mr. NICKLES. Mr. President, I am really kind of surprised that our colleagues have not agreed to the unanimous consent proposal that was made last night. I am almost shocked because when you think about it-- let me put it in a little different perspective. We have about 8 weeks that we are going to be in session before the end of September, before the end of the fiscal year. We have a lot of work to do in that period of time. The majority leader basically made a proposal that said you can have almost all of a week. He said we will have a week off on the July 4th break, but then when we come back, you can have Monday, Tuesday, Wednesday, and Thursday. That is 4 days not 3. It is 4 days. Under that proposal, amendments were limited to 2 hours each. That is a major concession. A Senator has a right to have unlimited debate on any amendment. Some of these amendments are very significant, as I think everybody would agree. Some of the proposals would change every single health care plan in America. Some would be quite expensive. Some would increase everybody's health care costs across the country. So we should not do that lightly. Probably we should not do it in 2 hours. If one amendment can increase every health care premium in the country by 1 percent--and there are a couple proposals to do that-- we should discuss that because a lot of people are concerned about the growing cost of health care. Under our proposal we said every amendment would have a 2-hour time limit. Granted, every amendment could have two second-degree amendments. I would be happy to modify that to one second-degree amendment if you think that advances your cause. I would be happy to do that. It doesn't take a brain surgeon to figure it out. I probably should not say that; Senator Frist is here. I would not assume a second-degree amendment is exactly the same or that close to the first- degree amendment. So, really, if you have 2-hour time limits, if you have one amendment and a second-degree, that is two amendments every 4 hours. We don't have to have a second-degree on every amendment. So you can have a lot of amendments in 4 days, a lot of them, probably to accomplish the desires that you have expressed to us, which is that you wanted to have 16 amendments or 20, or something similar to that. Some of those amendments on the list, hopefully, would be agreed upon. I haven't looked at the list. I haven't seen the list. But I am sure we can come to an agreement. I am also sure you don't have to spend 2 hours on every single amendment. So my point to my colleagues who have had amendments, and to the Senator from California, I mention this: You have the best deal you are ever going to get. It takes unanimous consent. A lot of Senators over here don't want to give unanimous consent to 2 hours on some of these amendments. That was in the proposal. I can't believe you didn't accept it, and then you said you want Friday, too. That is regrettable. Other people have said, wait a minute, now you are talking about making a point of order that you should not legislate on an appropriations bill. The Senator from South Dakota says we have done it before--a couple weeks ago. We have a real problem. We changed the rules by an action on the floor, and a lot of us voted that way and said, wait a minute, that has not helped us manage the Senate. We have had a rule in the Senate--a rule called rule XVI--which many times is abused and ignored; we legislate a lot on appropriations bills. But it makes it very difficult to accomplish things. Maybe that rule should be reinstated. Both Democrats and Republicans know we should reinstate it. Let's leave the authorizing and legislating up to the authorizing committees that have the experience and expertise to do so.

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES

Mr. NICKLES. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES

Mr. NICKLES. Mr. President, I rise today to introduce the Electric Consumer Choice Act. For the last three years hearings and workshops have been held in both the House and Senate examining the issue of restructuring the electric industry. Many bills have been introduced on this issue by both Congressmen and Senators, some comprehensive and some dealing with more discreet issues such as repeal of the Public Utility Holding Company (PUHCA) or repeal of the Public Utility Regulatory Policies Act of 1978 (PURPA). The bill that I am introducing today cuts to the heart of the issue: do we or don't we support allowing consumers to choose their electric supplier? Do we or don't we support a national competitive market in electricity? I believe the answer to these questions is a resounding ``yes''! I believe competition is good, that free markets work and that every American will benefit from a competitive electric industry. The Electric Consumer Choice Act is intended to begin the process of achieving a national, competitive electricity market. It achieves this in a simple, straight-forward method. Primarily, it eliminates electric monopolies by prohibiting the granting of exclusive rights to sell to electric utilities. It prohibits undue discrimination against consumers purchasing electricity in interstate commerce. It provides for access to local distribution facilities and it allows a state to impose reciprocity requirements on out-of-state utilities. The bill before you today also includes a straight repeal of PUHCA and the prospective repeal of the mandatory purchase provisions of PURPA. The bill also makes it clear that nothing in this act expands the authority of the Federal Energy Regulatory Commission (FERC) or limits the authority of a state to continue to regulate retail sales and distribution of electric energy in a manner consistent with the Commerce Clause of the United States Constitution. The premise of this bill is that all attributes of today's electric energy market--generation, transmission, distribution and both wholesale and retail sales--are either in or affect interstate commerce. Therefore, any State regulation of these attributes that unduly discriminates against the interstate market for electric power violates the Commerce Clause unless such State action is protected by an act of Congress. The Supreme Court has interpreted Part II of the Federal Power Act (FPA) as protecting State regulation of generation, local distribution, intrastate transmission and retail sales that unduly discriminates against the interstate market for electric power. The Court has reasoned that Congress, in the FPA, determined that the federal government needed only to regulate wholesale sales and interstate transmission in order to adequately protect interstate commerce in electric energy. Thus, all other aspects of the electric energy market were reserved to the States and protected from challenges under the Commerce Clause. The Electric Consumer Choice Act amends the FPA to eliminate the protection provided for State regulation that establishes, maintains, or enforces an exclusive right to sell electric energy or that unduly discriminates against any consumer who seeks to purchase electric energy in interstate commerce. This bill provides consumers and electric energy suppliers with the means to achieve retail choice in all States by January 1, 2002. It does not impose a federal statutory mandate on the States. It does not preempt the States' traditional jurisdiction to regulate the aspects of the electric power market in the reserved realm--generation, local distribution, intrastate transmission, or retail sales--it merely limits the scope of what the States can do in that realm. It does not expand or extend FERC jurisdiction into the aspects of traditional State authority. As I stated earlier, this bill is intended to provide every consumer a choice when it comes to electricity suppliers. It is intended to be the beginning, not the end of the process. There are many other issues that need to be addressed at the federal level to facilitate a national market for electricity. Some of these issues include taxation differences between various electric providers, clarification of jurisdiction over transmission, ensuring reliability, providing for inclusion of the Power Marketing Administrations and the Tennessee Valley Authority in a national market, and other issues that can only be addressed at the Federal level. These issues need to be addressed and should be addressed. But while these issues are being debated we should ensure that progress towards customer choice proceeds. I am proud to say that my state of Oklahoma has been in the forefront of opening up it's electricity markets to competition. Nineteen other states have also moved to open their markets. It is my hope that the Electric Consumer Choice Act will facilitate this process nationally. To that end, I am introducing this bill today. Mr. President, I ask unanimous consent that the Electric Consumer Choice Act be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I rise today to introduce the Electric Consumer Choice Act. For the last three years hearings and workshops have been held in both the House and Senate examining the issue of restructuring the electric industry. Many bills have been introduced on this issue by both Congressmen and Senators, some comprehensive and some dealing with more discreet issues such as repeal of the Public Utility Holding Company (PUHCA) or repeal of the Public Utility Regulatory Policies Act of 1978 (PURPA). The bill that I am introducing today cuts to the heart of the issue: do we or don't we support allowing consumers to choose their electric supplier? Do we or don't we support a national competitive market in electricity? I believe the answer to these questions is a resounding ``yes''! I believe competition is good, that free markets work and that every American will benefit from a competitive electric industry. The Electric Consumer Choice Act is intended to begin the process of achieving a national, competitive electricity market. It achieves this in a simple, straight-forward method. Primarily, it eliminates electric monopolies by prohibiting the granting of exclusive rights to sell to electric utilities. It prohibits undue discrimination against consumers purchasing electricity in interstate commerce. It provides for access to local distribution facilities and it allows a state to impose reciprocity requirements on out-of-state utilities. The bill before you today also includes a straight repeal of PUHCA and the prospective repeal of the mandatory purchase provisions of PURPA. The bill also makes it clear that nothing in this act expands the authority of the Federal Energy Regulatory Commission (FERC) or limits the authority of a state to continue to regulate retail sales and distribution of electric energy in a manner consistent with the Commerce Clause of the United States Constitution. The premise of this bill is that all attributes of today's electric energy market--generation, transmission, distribution and both wholesale and retail sales--are either in or affect interstate commerce. Therefore, any State regulation of these attributes that unduly discriminates against the interstate market for electric power violates the Commerce Clause unless such State action is protected by an act of Congress. The Supreme Court has interpreted Part II of the Federal Power Act (FPA) as protecting State regulation of generation, local distribution, intrastate transmission and retail sales that unduly discriminates against the interstate market for electric power. The Court has reasoned that Congress, in the FPA, determined that the federal government needed only to regulate wholesale sales and interstate transmission in order to adequately protect interstate commerce in electric energy. Thus, all other aspects of the electric energy market were reserved to the States and protected from challenges under the Commerce Clause. The Electric Consumer Choice Act amends the FPA to eliminate the protection provided for State regulation that establishes, maintains, or enforces an exclusive right to sell electric energy or that unduly discriminates against any consumer who seeks to purchase electric energy in interstate commerce. This bill provides consumers and electric energy suppliers with the means to achieve retail choice in all States by January 1, 2002. It does not impose a federal statutory mandate on the States. It does not preempt the States' traditional jurisdiction to regulate the aspects of the electric power market in the reserved realm--generation, local distribution, intrastate transmission, or retail sales--it merely limits the scope of what the States can do in that realm. It does not expand or extend FERC jurisdiction into the aspects of traditional State authority. As I stated earlier, this bill is intended to provide every consumer a choice when it comes to electricity suppliers. It is intended to be the beginning, not the end of the process. There are many other issues that need to be addressed at the federal level to facilitate a national market for electricity. Some of these issues include taxation differences between various electric providers, clarification of jurisdiction over transmission, ensuring reliability, providing for inclusion of the Power Marketing Administrations and the Tennessee Valley Authority in a national market, and other issues that can only be addressed at the Federal level. These issues need to be addressed and should be addressed. But while these issues are being debated we should ensure that progress towards customer choice proceeds. I am proud to say that my state of Oklahoma has been in the forefront of opening up it's electricity markets to competition. Nineteen other states have also moved to open their markets. It is my hope that the Electric Consumer Choice Act will facilitate this process nationally. To that end, I am introducing this bill today. Mr. President, I ask unanimous consent that the Electric Consumer Choice Act be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES. Thank you.

Mr. NICKLES. I tell my friend, and colleagues, there is a lot of work to be done. I think it is in the interest of all Senators to work together. I do not think that necessarily it is really constructive to say we are going to shut down the Senate for a week, as has actually happened the last couple days, unless we get our will. I would like us to work maybe a little more off the floor and a little more behind the scenes and say: What can we do? That will take cooperation. It will take saying, We are willing to take up this bill and finish it by tomorrow. Then you do not have to get into a whole lot of extended discussion and maybe a lack of trust. Because I heard some people say, well, wait a minute. Under this agreement that we proposed, somebody could filibuster the bill, and you could only have one or two amendments. That was not our intention. I can tell my colleagues that was not my intention. Do we want to have 25 really tough votes? No. But votes go both ways. But my point being, there is no one I know of who was saying we are going to have somebody come in and filibuster this bill. Nobody was talking about doing that. Maybe we need to have a little more faith and a little more collegiality and willingness to work together. This is an item of interest to a lot of people. There are a lot of people on this side who would like us to pass a positive bill. I have also stated my very sincere conviction that we should not pass a bill that is going to increase health care costs a total of about 13 or 14 percent, after you add in inflation. I really mean that. I am very sincere about that. So we may have some differences, but, I have not totally given up on the idea of us working something out. I will suggest the absence of a quorum. Maybe something else can be done to accomplish that. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES. Mr. President, I appreciate the comments of my colleague from California. She mentioned timing. I do not think the time is now. I do not think it should be on the appropriations bill. We have been pretty straightforward in saying we will give you a few days after the Fourth of July break. Basically, that means next week we will be working on other appropriations bills, and that means the following week we will be working on the Patients' Bill of Rights. I will tell my colleague--I can easily tell her, and anybody else-- the Senator can orchestrate a way to get a vote on her amendment. It can be done. Her amendment can be a second-degree amendment, I tell my colleague. I have already stated we can limit the agreement to one second-degree amendment instead of two. There are many of us willing to do that. The way not to do it, in my opinion, is piecemeal on 20 different legislative items--some on this appropriations bill, some on that appropriations bill--knowing those appropriators are going to conference and will say: What in the world are we going to do with medical necessity? We don't know what that is. I appreciate the fact she mentioned a brain surgeon who said a patient should stay in a day longer and some managed care idiot, or bureaucrat, said no. I do not happen to think the legislative solution proposed in the Senator's legislation is the right fix. I happen to think the better idea is to give an internal appeal that can be done immediately. It can be appealed. If it is not overturned--the example the Senator cited I think would be overturned immediately, and, if not done immediately, it could be done by an external appeal done by outside peer review experts. They do not have to go to court, they do not have to sue, and they have immediate change. That is the better process. My point is, as far as process is concerned now, we should not be debating this on an appropriations bill. Offering a few days beginning on July 12 is more than generous. I will try to be flexible in further negotiations, but the give is just about given when, if the Senator looks, we have just about 8 weeks to legislate before the end of the fiscal year. I think the majority leader has been very, very generous. I will work with my colleague to see if we cannot come to a constructive conclusion. I appreciate her willingness to do so. Mr. President, I yield the floor.

Mr. NICKLES. Mr. President, I hate to see my colleague and friend from Massachusetts get so exercised--and he happens to be incorrect. He has to know the rules of the Senate very well. The proposal the majority leader was propounding is very fair. The Senator from California wants a vote on her amendment. I will be very frank. The way she can get a vote on her amendment is to move forward and accept the offer already made. She could offer her amendment, for example, as a second-degree amendment. The Senator can get a vote on her amendment. The way to do this is not on an appropriations bill. The Senator from Idaho is correct. We shouldn't be doing this on an appropriations bill. Everyone in the Senate knows it. This is not the way to legislate. We ought to be able to manage the Nation's business in an appropriate manner, not coming up with the Patients' Bill of Rights saying: We will do this piece by piece; we have 40 pieces and we will do it on various bills, bills that are going to go to conferees. Conferees know absolutely nothing about this issue. They have never had a hearing on this issue, never dealt with this issue. Asking them to legislate on it is wrong. It is not going to happen. It will not pass; it will not become law. We are wasting our time. It is not anybody's intention on this side to filibuster, to deny the opportunity to offer amendments. The Senator can have the opportunity. Yes, it is quite likely there will be amendments offered in the second- degree, but a lot of amendments wouldn't be offered in the second- degree. Likewise, second-degree amendments are available to Members on both sides. That should be very apparent. The point is I am a little frustrated by people saying we are not being treated fairly. The Senator has been offered a most generous proposal where Senators could offer lots and lots of amendments and get votes on those amendments. It doesn't take a legislative genius to make that happen. I encourage our colleagues to see if we can't work together and make this happen instead of offering this piece by piece on an agriculture appropriations bill, even though we know it will not become law. I think there is a right way to legislate. This is not the right way to legislate. I hope we will work together to come up with something acceptable. I think there has been put off a more than generous proposal from on our side. We have been amending it for the last 2 days, trying to accommodate legitimate concerns. Somebody said originally it was 3 hours on each amendment. Some people say we shouldn't have any debate limit on amendments. I happen to think that is probably closer to correct when considering the magnitude and the scope of some of these amendments. I urge our colleagues to step back and lower the rhetoric, not get so exercised, and see if we can't come up with an appropriate legislative way to solve this problem, see if we can't come up with a legitimate, positive, legislative approach that will help solve some of the problems that have been acknowledged, without dramatic increases in consumer costs and increases in the number of people who are uninsured. That is what I prefer. The hotter the rhetoric gets, the less likely that is to happen. We need to work together in order to make positive legislation happen. The Democrats alone will not pass legislation; the Republicans alone will not pass legislation. Nothing will become law if it is strictly partisan. I urge my colleagues to step back a little bit and look at some of these unanimous consent requests and see if we can find an appropriate vehicle and manner to legislate on this important issue. I yield the floor.

Mr. NICKLES. I will be happy to yield.

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. NICKLES

Mr. NICKLES. Mr. President, I compliment my colleague, the Senator from Nebraska, for his statement.

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent that morning business be extended for an additional 15 minutes.