Berkley could learn fate of ethics probe Monday

By Karoun Demirjian

Sunday, July 8, 2012 | 2 a.m.

After months of living under the shadow of a potential ethics probe, Rep. Shelley Berkley should find out Monday whether the committee considering her case will launch a formal investigation into whether she advocated for higher Medicare reimbursement rates for kidney care to benefit her family’s financial situation.

Or, the House Committee on Ethics could kick the can down the road, declining to issue an opinion until closer to -- or even after -- the election.

At the very least, Monday should yield the details of the Office of Congressional Ethics’ review that put Berkley before the committee in the first place.

The ethics panel is supposed to base its decision on whether to investigate on the merits of the case. But ethics experts are split on whether the case appears to warrant an investigation, meaning ample room likely exists for politics to come into play.

The committee of five Republicans and five Democrats usually steers clear of political splits when the ethical problems before them are stark. But experts say Berkley’s case falls into a gray area of congressional ethics.

On the one hand, it’s flat-out wrong for members of Congress to use their position to push for policies where “compensation [could] accrue” to themselves or an immediate family member. On the other, a lawmaker isn’t supposed to recuse herself from voting on every matter on which she might have a personal interest. That would disenfranchise constituents.

In this case, Berkley joined other members of the Nevada delegation to write a letter pushing federal officials not to close a kidney transplant center-- the only one in the Las Vegas Valley at University Medical Center, where her husband Larry Lehrner’s nephrology practice has a contract to provide care. Berkley also wrote a letter to the chairman of the House Ways and Means subcommittee with jurisdiction over Medicare petitioning him not to lower reimbursement rates for doctors providing dialysis treatments.

“This is precisely the type of ethics allegation that merits a full investigation,” said Craig Holman, executive director of Public Citizen, a non-profit government watchdog group in Washington, DC. “When public officials are using their official position in order to provide personal financial benefit to themselves or their family, that is one of the most serious ethics violations that befalls Congress.”

But while others are troubled by the letters, they don’t think digging into them would be the best use of the ethics committee’s time.

“I would be surprised if they really come after this hard,” said Melanie Sloan, director of Citizens for Responsibility and Ethics in Washington, whose group had put Berkley on a list of “dishonorable mentions” in Congress for the particulars of this affair. “Berkley’s conduct, while certainly questionable, doesn’t even begin to come close to what Vern Buchanan has done, and they’re not doing much about that.”

Rep. Buchanan, who allegedly asked a former business partner to lie to the Federal Election Commission, isn’t yet under official investigation. His case is still under review. Rep. Maxine Waters, who allegedly intervened on behalf of a specific bank in which her husband had $350,000 invested, is under investigation. But it took the committee years to get to that point.

The panel has at least half a dozen other lawmakers in various stages of procedural limbo -- some of whose cases may simply be left to linger indefinitely.

“There’s not a lot of facts in dispute here, so I don’t know why they would need more time. The only thing we’re getting closer to is an election,” Sloan said. “But they could easily wait past the election and then decide that they no longer have jurisdiction.”

Berkley is locked in tight race for the Senate against Republican Dean Heller. The ethics probe has already spawned ominous attack ads from Republican groups supporting Heller.

Whether she wins or loses her bid, her House term ends at the end of the calendar year, freeing her from the ethics committee’s purview.

Leaving her case up in the air wouldn’t be the ideal situation for Berkley, who has maintained she was doing her responsibility as a congresswoman when she pushed for those Medicare rates, nothing more.

“Should the committee conduct a full investigation, they will find that Shelley Berkley's one and only concern was for the well being of Nevada's patients,” Berkley’s spokeswoman Xochitl Hinojosa said Friday.

But the election, though technically irrelevant to the process, will not be absent from the committee members’ minds.

“Partisan politics can play a significant factor when it comes to the ethics committee,” said Craig Holman, executive director of Public Citizen, a non-partisan government watchdog organization based in Washington. “Members of Congress of both parties want to protect their fellow colleagues.”

To move forward with a full-scale investigation, a majority of the committee must vote in favor it. In the case of a 5-5 split, the matter against Berkley will be dropped.