Former Rep. Shelley Berkley — who lost an extremely close race to U.S. Sen. Dean Heller in November — has called on the House Ethics Committee to reform its procedures, saying she was harmed by a drawn-out, partisan-initiated investigation that unfolded during a tough election.
Berkley says the House investigation of her official dealings with her physician husband was sparked by a partisan complaint filed by the Nevada Republican Party, could have been resolved much more quickly and ended up playing a big role in her defeat. She suggests several reforms that could avoid similar situations in the future.
The letter also reveals that her attorney has asked for an investigation of leaks that occurred during the House probe, although it doesn’t specify what information was allegedly leaked.
(UPDATE: The Review-Journal‘s Steve Tetreault reports today that Berkley’s attorney, Marc Elias, complained specifically about leaks regarding Ethics Committee interviews of a Veterans Affairs medical administrator in Southern Nevada.)
The Ethics Committee’s investigation rejected the contentions in the original complaint, that Berkley had used her office to help her husband Dr. Larry Lehrner‘s medical practice specializing in kidney care. (Berkley intervened to save a threatened kidney transplant program at UMC overseen by Lehrner’s practice, and advocated against reductions in reimbursements for kidney doctors.)
But the investigation went on to find that Berkley had violated House rules by assisting Lehrner’s practice in obtaining tardy payments from government programs.
“During this process, the public was not protected from a member [of Congress] abusing her position for her own gain; instead, the process was subverted to affect the results of an election,” Berkley wrote to the committee.
Berkley said she cooperated fully in all stages of the investigation, first a review by the Office of Congressional Ethics, and later with the Ethics Committee. During the investigation, more than 108,000 pages of documents were reviewed, and nine witnesses interviewed.
“And in the end, the committee found that I had not violated any rule in connection with the Office of Congressional Ethics matter originally referred to the committee, but that I had committed an inadvertent violation in another, unrelated matter that only came to light during the [Ethics] Committee’s voluminous request for documents,” Berkley wrote. “As a result, the cloud hanging over my head during this process caused me to lose a very close election for the United States Senate.”
It’s undeniable that millions of dollars in negative ads were deployed against Berkley on the ethics issue, and that it played a significant role in her defeat. But it’s impossible to say with certainty that — had no investigation taken place — Berkley would have defeated Heller. The incredibly nasty race saw nearly 100,000 voters cast ballots for Independent American Party candidate David Vanderbeek or “none of these candidates.” More than 18,000 others skipped the Senate race entirely. Berkley’s performance in debates was uneven, and she badly lost the rural and Northern parts of Nevada to Heller, including critical Washoe County.
Reforming the system
Berkley made several suggestions to the Ethics Committee for reforms, some of which may be difficult to implement. They are:
- Act quickly to dismiss claims without merit. Berkley says the facts at issue in the original complaint against her were a matter of public record, and didn’t require a separate investigation by the Ethics Committee. “The delay in reaching this decision caused me enormous damage in my election.” There’s merit to the idea of placing a time limit on how long reviews of complaints should take, with options to extend for complex matters.
- Beware partisan complaints. Berkley says the complaint against her was “plainly partisan,” in content and timing. “The committee should act more quickly, and be more inclined to dismiss out of hand, complaints clearly brought to influence a competitive election.” The problem with this suggestion is that sometimes, an entirely partisan complaint potentially can have merit. The committee should concern itself primarily with the truth or falsehood of allegations lodged against members, and perhaps consider public sanctions of groups or individuals that bring meritless, partisan complaints. But dismissing a complaint that may have merit just because of who files it or when could result in overlooking actual violations. On the other hand, U.S. attorneys are discouraged from bringing political indictments too close to an election; perhaps a similar rule could be implemented for the committee.
- Make the rules more clear. The Ethics Committee agreed that the rules surrounding the violation they found in Berkley’s case needed to be made more clear. Of course, the more clear and precise the rules are, the easier it is to find ways around them, or engage in conduct that technically complies with the rules but is nonetheless unethical. A rule that says “no member may use his or her office in any way to confer any benefit whatsoever upon a spouse or any family member within the third degree of consanguinity,” may be criticized for vagueness, but the intent is unmistakable: Don’t help your family.
- Provide members and staff allowance to hire counsel. In any significant investigation, those who are questioned will need to seek legal advice. In the case of members, campaign funds can be used to pay lawyers. But staffers must pay from their own pocket. Berkley suggests government funds be provided for hiring counsel in serious matters. And while anti-government waste crusaders will hate that idea, it’s easy to sympathize with modestly paid congressional staffers confronted with the need to seek legal advice, especially in situations not of their making.
Overall, some will dismiss Berkley’s letter as self-serving, given her recent loss. The fact is, she did act to help her husband’s medical practice, although the committee said she didn’t do it for the money and that she didn’t give Lehrner any better or worse service than she gave to every other constituent. There’s merit to some of her suggestions, although she may be a flawed messenger for reform. But any federal lawmaker could understand her frustration, since any of them could one day be the subject of an ethics complaint, and face the same issues Berkley outlined her in letter.