The second-best news for Shelley Berkley?

The House Ethics Committee included this line in its Monday statement announcing it was appointing a committee to investigate whether Rep. Shelley Berkley broke ethics laws: “The committee notes that the mere fact of establishing an investigative subcommittee does not itself indicate that any violation has occurred.”

But the fact that – rather than dismiss the matter as unfounded – the bipartisan committee decided to investigate a Republican-filed complaint that Berkley took actions to benefit her husband’s medical practice shows some members may believe there’s fire under all that smoke.

The outcome is actually the second-best Berkley could have hoped for: By the time the investigative subcommittee finishes its review of evidence, conducts interviews and then reports back to the committee, the results will not matter. Berkley will either be a U.S. senator or a private citizen – in either case beyond the jurisdiction of the Ethics Committee.

The first line of the Berkley campaign’s prepared statement in response to the action was almost comically untrue: “We are pleased with the committee’s decision to conduct a full and fair investigation, which will ensure all the facts are reviewed,” said campaign manager Jessica Mackler. Not quite as pleased as she would have been had the committee dismissed the case, of course.

“We are confident that ultimately it will be clear that Congresswoman Berkley’s one and only concern was for the health and well being of Nevada’s patients. That’s why she joined then Republican Congressman Dean Heller to prevent Nevada’s only kidney transplant program from being shut down by Washington bureaucrats,” Mackler adds.

That’s Heller, as in Sen. Dean Heller, the man against whom Berkley is running for Senate. Heller – perhaps realizing it’s never wise to interfere when your opponent is drowning – elected to say nothing Monday.

“With more than 200 Nevada patients desperately waiting for a lifesaving kidney transplant, it would have been irresponsible of [Berkley] not to work with the state’s entire congressional delegation to protect the [kidney] program,” Mackler’s statement concludes.

Indeed, Berkley’s actions saved kidney patients from having to travel out of state for transplants, and may ultimately have saved lives. That’s the primary defense, the political defense, of her signing a letter in support of the program and, more seriously, personally calling the head of the Centers for Medicare and Medicaid Services to plead for the kidney program.

The fact is, a close analysis of the case shows Berkley did not personally profit from her actions. Yes, her husband’s medical practice oversaw kidney transplants at UMC; but his contract would not have increased or decreased in value had the program been cancelled.

Where Berkley did profit – she argued against cuts in reimbursements to physicians such as her husband – she didn’t profit any more or less than the spouse of any other kidney doctor in the United States. The House Ethics Manual allows those kind of votes. But she could still be accused by the committee of conduct unbecoming a member of the House.

Where Berkley may have saved herself scrutiny is if she’d disclosed her conflict and refrained from taking any actions with respect to UMC or reimbursements. She’d have remained above the fray, beyond reproach.

But that’s not Berkley – she’s said repeatedly that she could not have been silent while the UMC program fell victim to cuts. She obviously should have disclosed more, although that probably wouldn’t have saved her from a complaint.

In the end, she decided it was better to risk trouble for doing something than to suffer the consequences of doing nothing. And now that she’s found trouble, a defiant Berkley faces the political consequences of that decision.

 

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.

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