WASHINGTON — Cheryl LaFleur will likely remain acting chair of the Federal Energy Regulatory Commission for another year under a deal with the White House that won a Senate floor vote for Norman Bay.

A Senate panel voted June 18 to approve Bay’s appointment to FERC in a deal that will keep LaFleur in her leadership role for nine months after Bay’s confirmation by the full Senate.

The Senate Energy and Natural Resources Committee voted 13-9 to confirm Bay and 21-1 to grant LaFleur a second five-year term.  With a floor vote not expected until September, LaFleur could remain in the top spot until June 2015.

LaFleur had sailed through her confirmation hearing May 20 while Bay was forced to defend his limited policy experience and his running of the commission’s enforcement division. The Department of Energy Organization Act gives the Senate authority to confirm members of FERC but gives it no say over which one of the commissioners is appointed chair by the president.

The president’s concession was enough to win the support of West Virginia Democrat Joe Manchin today but not that of ranking member Lisa Murkowski (R-Alaska) and most of her Republican colleagues. Murkowski said she wanted the president to remove the “acting” designation from LaFleur’s chairmanship so that she had full authority to act in a leadership role.

“I have not been given the assurance that she would be given the full authority as the chairman,” Murkowski said before casting her “no” vote.

Experience Questioned

Earlier in the hearing, Murkowski noted that lights in the Capitol were dimmed to conserve energy and said “there might be rolling brownouts this afternoon” as temperatures hit the 90s. She also cited FERC’s role in ensuring the grid’s reliability in the face of increasing environmental regulations on fossil fuel-fired generators.

“We need the best of the best running the commission,” Murkowski said.

While praising Bay as “a learned man,” she said the FERC chairmanship was not the place for “on-the-job training.”

Bay, who has served as director of FERC’s Office of Enforcement since 2009, is a former federal prosecutor and law school professor. Unlike most FERC commissioners in the last decade, he has never served as a state utility regulator.

Of the 15 FERC commissioners who have served since 2000, 10 served as commissioners or staffers at state regulatory agencies prior to their appointments. Four of the others worked in energy-related posts in state or federal legislative committees or executive agencies; one was a former utility executive.

The last five chairmen served a median of 30 months before becoming chair. Only one, Patrick H. Wood III, served less than a year on the panel before his promotion.

Murkowski and others also raised the issue of gender politics, questioning why Obama announced his intention to appoint the less experienced Bay directly into the chairmanship, “particularly when we have a woman … as the acting head of this commission. By all reports [LaFleur’s] been doing a good job,” Murkowski said. LaFleur is the only woman on the commission.

Among those who had expressed concern over Bay’s limited energy policy experience was Manchin, who helped sink the bid of Obama’s previous nominee, former Colorado regulator Ron Binz.

That sparked a flurry of negotiations over the last several days among the White House, Murkowski and Energy committee Chair Mary Landrieu (D-La.), which resulted in the president’s concession not to appoint Bay chairman immediately.

The lone vote against LaFleur apparently came from Vermont Sen. Bernie Sanders, an independent who caucuses with the Democrats. Sanders said he was not opposed to LaFleur’s second term but was protesting the delay in Bay’s ascension. “I think Mr. Bay would be an outstanding chair,” he said.

The committee’s vote sends the Bay and LaFleur nominations to the full Senate, where Bay has the backing of Senate Majority Leader Harry Reid (D-Nev.). In an interview with The Wall Street Journal June 8, Reid said bluntly, “I don’t want [LaFleur] as chair.”

Reid told the Journal he was concerned LaFleur would not adequately enforce market manipulation rules or support building transmission for renewable energy. Reid also said he feared LaFleur would undo initiatives of former chair Jon Wellinghoff, a Nevadan allied with Reid who retired last year.

“This is not the outcome Sen. Reid would have preferred but he accepts the compromise negotiated by Sen. Landrieu and he will move forward with confirming the nominees,” a Reid spokeswoman told The National Journal after the vote.

Enforcement Criticism

The criticism over Bay’s management of FERC’s Office of Enforcement was sparked by members of the energy bar, led by former FERC general counsel William Scherman. In a 49-page article in the Energy Law Journal, Scherman accused Bay of driving Wall Street banks out of energy trading with heavy-handed enforcement tactics. Several senators continued to probe the issue in post-hearing questions to Bay and LaFleur.

In her answers, LaFleur acknowledged differing with Bay and her fellow commissioners on procedural matters regarding seven investigations, including four in which the subjects were represented by Scherman. While LaFleur characterized the disagreements as “procedural” and not substantive, the disclosures did lend some credibility to Scherman’s critique.