In ethics, less is more

There's a lot of unsurprising things in The New York Times' story about alleged conflicts between Rep. Shelley Berkley's official actions and her husband's Las Vegas medical practice.

For example, it's not that big of a surprise that Berkley receives campaign contributions from the Renal Physicians Association. After all, it's headed by Dr. Larry Lehrner, Berkley's husband, a kidney doctor who is president of Kidney Specialists of Southern Nevada.

It's also not that big a shock to think Lehrner and Berkley talk medicine. Berkley often says in speeches her husband has lectured her about what Washington doesn't get about health care.

As the Times extensively documented in its Sept. 5 story by reporter Eric Lipton, Berkley has also received thousands in contributions from other kidney doctors and the company DaVita, which runs 10 kidney dialysis clinics in Las Vegas in a joint venture with Lehrner.

But is that any more surprising than a lawmaker with ties to the insurance industry receiving contributions from Allstate or Geico? Or one who advocates for union issues getting checks from organized labor? Our entire system of political finance is often little more than legalized bribery on its best day, but so long as a specific contribution is not given in exchange for a specific official act, no laws are broken.

The Times also reported on a series of bills Berkley has introduced, six since 2004. The bills all tend to benefit kidney doctors, which some might see as a conflict of interest, since any money that comes to her husband's practice comes to her as well.

But the prevailing standard in government is this: So long as a piece of legislation affects a lawmaker's spouse, family or business associates no differently than any other person in a given class, that lawmaker can participate and vote. Berkley could vote on a bill that raises reimbursement rates for all kidney doctors nationwide, because that wouldn't help Lehrner any more than his colleagues in Texas, Florida or Nebraska. But she couldn't vote on a bill that, say, authorizes a grant for his practice to research kidney disease, since the impact on her spouse would be unique.

That's why the details of Berkley's 2008 intervention to save the kidney transplant program at University Medical Center is the most troubling aspect of the Times' story. Lehrner's practice since 2007 has run the kidney program at the public hospital, including evaluating all candidates for kidney transplant operations (but not the actual transplant operations). The federal Centers for Medicare and Medicaid Services was preparing to shut down UMC's program in 2008 after several patients died, at which point then-Rep. Jon Porter wrote a letter (co-signed by then-Rep. Dean Heller and Berkley) urging the centers to reconsider. Porter and Berkley also had personal conversations with the administrator of the centers. Officials relented, and the program was saved.

Now, kidney transplants are only one aspect of Lehrner's UMC contract, which would have continued even if the transplant program was canceled. But the fact remains, Lehrner's practice was paid about $600,000 annually by UMC, and for that reason alone, Berkley should have abstained from advocating on the issue.

(The fact that Lehrner held the contract at the time wasn't even a revelation in the Times; the Las Vegas Sun reported the relationship at the time, along with an ethics watchdog's opinion that Berkley's advocacy wasn't a conflict.)

Whether Berkley violated House ethics rules is debatable, and it will be debated if someone files a complaint with the ethics committee. But in a situation in which a lawmaker is in a position to use his or her office to take an action that concerns a spouse's business, the wisest course -- and the most ethical -- is to avoid even the appearance of a conflict.

Berkley is defiant, saying an important health care program was at stake. (It's Nevada's only transplant program, without which patients would have had to travel out of state.) "I won't stop fighting to given Nevadans access to affordable health care just because my husband is a doctor," Berkley told the Times in a statement.

But that's not why she should have abstained in 2008. Her husband isn't just any doctor, and this wasn't just any program. Her husband is president of the practice that runs the kidney program, which puts Berkley in a precarious ethical position. No matter the public good that came from intervening with federal regulators -- and that's beyond dispute -- the conflict should have caused Berkley to step back and let her colleagues handle this case.

Ironically, her failure to do so creates an opening for political opponents to hit her where she's strong: her reputation for hard work and zealous advocacy. Whether this issue will prove pivotal or not in Berkley's quest for the U.S. Senate is unknown. What is known is this: Had she abstained, there'd be no controversy in the first place.

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