House ethics panel reviewing allegations against Berkley

WASHINGTON -- Over the past six months, Rep. Shelley Berkley has waged an aggressive campaign for U.S. Senate. She has spoken out on jobs, trade, health care and women's issues in a bid to unseat incumbent Sen. Dean Heller in November.

But in the background lurked a thorny matter with the potential to throw a curveball into the race. An ethics complaint had been filed against Berkley by Nevada Republicans last September. Democrats shrugged it off as frivolous, yet it remained unresolved.

On Friday, the issue raised its head when the House Ethics Committee announced it was reviewing allegations against Berkley after the complaint she may have violated House conflict rules by advocating on kidney health matters that appeared to help her husband's medical practice.

Committee leaders said they expected to announce a course of action before July 9. Sources said it could range from dismissal of the complaint to the convening of a subcommittee to conduct a full investigation.

The review "does not itself indicate that any violation has occurred, or reflect any judgment on behalf of the committee," the panel cautioned in a statement.

Nonetheless, the announcement was the first official word that Berkley, 61, was being scrutinized. It came at an inopportune time for the seven-term Democratic House member, who is fully engaged in one of the key races that could decide U.S. Senate control this fall.

"It is going to be a burr under her saddle," said Mark Peplowski, political science professor at the College of Southern Nevada.

"It certainly is going to provide plenty of ammunition for those on the right, from Rush Limbaugh on down," Peplowski said, adding he would not be surprised to see groups from outside the state "spending some money to hit her with it."

If the complaint is dismissed in July or before then, Berkley will have time to recover before November, Peplowski said. "It is not going to hurt her too badly among independents who tend to make up their mind later on anyway."

But if the Ethics Committee decides to move ahead with an investigation, "it could cost her several very valuable points, and I think she knows that," Peplowski said. "This is going to be a very, very important battle."

A Democratic strategist familiar with the Nevada campaign said the situation is not ideal, but the party strongly thinks the race will hinge on other issues.

"At the end of the day, this election is not going to be about this, it is going to be about Medicare. The other issues in this race are going to dominate," said the strategist who asked not to be identified.

The Ethics Committee statement resurrected a matter that largely had been in public hibernation since last September, when the New York Times published a lengthy story reporting on Berkley's advocacy on kidney care while married to Dr. Larry Lehrner, a prominent Las Vegas nephrologist.

Following the report, which Berkley charged was baseless, the Nevada Republican Party filed a House complaint that she "used her office to enrich herself" in violation of rules that forbid members of Congress from using their positions for personal gain.

The Office of Congressional Ethics, which screens such complaints, referred the case to the Ethics Committee on Feb. 9. The referral came after an OCE review that concluded there was "substantial reason to believe" the allegations.

The Ethics Committee was required by its rules to comment one way or the other 45 days after receiving the case. Neither ethics body has commented on the substance of its reviews, but the Ethics Committee will be required to release some information when it announces its next step, officials said.

Jessica Mackler, manager of Berkley's Senate campaign, said Friday that the ethics committee will find no wrongdoing.

"As the committee reviews this complaint, they will determine that Congresswoman Shelley Berkley's only concern is for the well-being of Nevada's patients," Mackler said.

Heller declined to comment when asked about Berkley at a Las Vegas health care event.

"I don't have any comment," Heller said. "Let the process play itself out."

The political arm of Senate Republicans, however, issued a statement questioning Berkley's integrity.

"Had this complaint been 'frivolous' as Berkley and her allies have long claimed, it would have been simply dismissed instead of forwarded to the full committee," said Brian Walsh, communications director of the National Republican Senatorial Committee.

Congressional watchdog Melanie Sloan said the Ethics Committee's decision to prolong a review of the allegations gives few clues about the Berkley case.

Sloan said the committee has a mixed record on accepting cases referred from the Office of Congressional Ethics, which was created in a 2009 effort by Congress to tighten its rules. It is a nonpartisan office headed by board of eight members, six of whom are former lawmakers.

For Berkley, the landscape "is more serious than if the OCE had dismissed the case. On the other hand, the Ethics Committee did not authorize an investigative subcommittee, and that is when they think it is really serious," said Sloan, who is executive director of Citizens for Responsibility and Ethics in Washington.

"The OCE board thinks that Representative Berkley did something wrong, but whether the Ethics Committee will follow, that is an open question. Sometimes they have a remarkably different view of the rules," said Sloan, who has criticized the House panel as a lax enforcer.

The House Ethics Committee is a 10-member panel evenly divided with five Democrats and five Republicans.

Its chairman is Rep. Jo Bonner, R-Ala., and its ranking Democrat is Rep. Linda Sanchez, D-Calif. Committee aides declined comment beyond the panel's statement.

The Republican complaint in September referenced the New York Times report that raised questions about Berkley's efforts in 2008 to keep open the kidney transplant program at University Medical Center in Las Vegas, where her husband's partnership, Kidney Specialists of Southern Nevada, held a six-figure contract for clinical and administrative services.

After the Centers for Medicare and Medicaid Services threatened to revoke the UMC certification in 2008, Berkley, with then-Reps. Jon Porter and Dean Heller, signed a letter to CMS in support of the hospital's appeal. Berkley and Porter met with federal officials to help broker an agreement that saved the certification.

Berkley said later she should have more fully disclosed her husband's connection to the UMC program, but she said that she thought it was well-known and that she was not going to walk away from the hospital, a key institution in Southern Nevada, and Nevadans needing kidney transplants.

Beyond that, the paper reported Berkley co-sponsored five bills to expand assistance for kidney care and signed letters in 2008 and 2011 against cuts in Medicare reimbursements for dialysis providers.

The actions were in line with positions taken by kidney doctors including the Renal Physicians Association, an industry political action committee that Lehrner helped establish in 2006, according to the report.

Mackler said Friday that Berkley "fought against out-of-state Washington bureaucrats from restricting patients' access to care and why she joined fellow Reps. Jon Porter and Dean Heller to stop Nevada's only kidney transplant program from being shut down, which would have denied life saving treatment to hundreds of Nevadans."

A Democratic strategist familiar with the case said Berkley presented an extensive rebuttal to the Office of Congressional Ethics.

She argued that her actions on behalf of UMC were transparent as evidenced by media interviews she gave at the time, and that her financial interest was "minuscule."

Lehrner owned 9.09 percent of Kidney Specialists of Southern Nevada, and the firm's contract with UMC was for a fixed fee that would not have altered even if the kidney center had closed, the officials were told.

Also, they were pointed to remarks by UMC chief executive Brian Brannman that the hospital had been doing business with the practice since 2000, and it was one of just a few in Las Vegas capable of providing extensive patient coverage.

Berkley also has argued she has been consistent in fighting against reductions in Medicare reimbursements for all doctors.

She has said she opposed a new Medicare payment system for kidney treatments because it would have hurt small dialysis centers in rural areas.

Review-Journal writer Laura Myers contributed to this story. Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760. Follow him on Twitter @STetreaultDC.