Binz is not being Borked

Ron Binz, President Obama’s nominee to head the Federal Energy Regulatory Commission, still could be confirmed by the Senate. But to some of his supporters, his struggles as a nominee will indeed bear some resemblance to those of Robert Bork, President Reagan’s failed nominee for the U.S. Supreme Court.

Like Binz, he clearly understood the job. Bork had been a judge on the D.C. Circuit Court of Appeals – the nation’s second-highest court. He had served as a Yale law professor and as Solicitor General and acting Attorney General. He had carried out the Saturday Night Massacre for President Nixon – firing Special Prosecutor Archibald Cox after Attorney General Elliot Richardson and his deputy, William Ruckelshaus, had resigned rather than do so.

Which meant, like Binz, he had a long public record to mine for opposition research. Bork had written extensively on Constitutional Originalism, a theory now popular among scholars but not well-known at that time. He had written so much, in fact, that opponents said he could not be relied upon to rule impartially.

Binz’ supporters will claim the same thing. He has been in the business of pushing for renewables for so long, his ability to deliver unbiased rulings on matters involving fossil fuels – FERC regulates pipelines and handles other energy-related issues – might be in doubt.

But Binz’ nomination is in trouble today not because of his public work as a member of the Colorado Public Utilities Commission but because he appeared during his confirmation hearing to offer four statements that do match up with the facts.

He told Sen. Lisa Murkowski, R-Alaska, in a courtesy visit to her office that his nomination candidacy was being assisted only by FERC staff, which is common for such positions. In fact, he had been directing an army of consultants, headed by VennSquared, a liberal PR firm – and Murkowski found out about it.

She had been tipped off about this by work from my colleague at the Competitive Enterprise Institute, Christopher C. Horner, who had found out about it through documents produced in response to Freedom of Information Act requests filed on behalf of the Independence Institute and the Free Market Environmental Law Center.

When finally cornered, Binz offered a Washington apologia for the ages. “I apologize,” he said, “if I have left a different impression from what we now agree has happened.”

Murkowski was not amused. She announced she could not support him because of this.

But Binz, whose bio brags he has testified before Congress 15 times, had even more of a rough go later on in Appearance No.16. Soon after his encounter with Murkowski, he told Sen. Joe Manchin, D-WVa., he “approved the largest coal plant that was ever built in Colorado.” He was referring to the Comanche-3 power plant, and the Colorado Public Utilities Commission indeed did approve that plant. But it did so in 2004, and Binz didn’t join until 2007.


He also claimed he approved a rate plan to allow the utility to begin operating, but Polly Page, who served as a commissioner from 200 to 2008 said he merely rubber-stamped rates that already had cleared initial approval.

Oops again.

He also spoke to Manchin about a plan he implemented as chairman of the Colorado PUC that required power plants to switch from coal to cleaner fuels. Binz said “the legislation told us to approve a plan to comply with future EPA regulations.”

This was blame-shifting in regard to fuel-switching. As my CEI colleague William Yeatman pointed out, Binz clearly was implying to Manchin, who represents America’s most coal-dependent state, that it wasn’t his fault the plan had been implemented – even though he had helped write the fuel-switching law.

Oops again – and this time a big one. Manchin announced he also could not support Binz. That means, if all other members of the committee vote on party lines, the vote will be 11-11. Only five nominees have ever been reported for a vote by the full Senate on neutral committee votes, and only one of those five was confirmed.

So, soon we will hear about how yet another of President Obama’s appointees has been dragged through the mud by a partisan Congress that refuses to cooperate on even minor matters. But that is not the case. The problem for Binz was not what he stood for, it was that he doesn’t seem to be able to tell the truth.