Heck’s dual roles as general, senator would be business as usual

If early campaigning is any indication, the issue is not destined to become a hot topic this year or next for the candidate, who also is a physician and a congressman.

While Heck has been assailed by Democrats on his politics, the ethics or legality of him serving in the Senate and the military at the same time has not attracted any criticism. Emails and phone calls to the Nevada State Democratic Party and U.S. Senate candidate Catherine Cortez Masto seeking comment on these two roles were not even returned.

The U.S. Constitution prohibits active-duty military members from serving in Congress, but there is no difference in his constraints or obligations as a reservist whether he is a member of the House or the Senate, according to a constitutional law expert.

“The separation of powers concern is largely theoretical,” said Michael C. Dorf, a constitutional law professor at Cornell University.

While the Constitution requires that no person holding office under the United States shall be a member of either house during his or her continuance in office, Dorf said an argument can be made in Heck’s case, for example, that he is not holding office as an Army reservist.

“My main view about this is, it is going to be largely up to the senator or congressman to police this because in order for someone to bring a case challenging this, they would have to have legal standing” such as someone suffering injury who was convicted or charged with a crime, Dorf said.

“It might well be unconstitutional for somebody to be a reservist and a senator. However, except in rare circumstances the only person who can say that is the person himself or maybe the Senate,” he said.

The issue is similar to a civilian who owns a company, chairs the school board and also is an officer in their church. “They’ve got to keep straight which role they’re playing,” he said.

In the context of a citizen-soldier holding a seat in Congress, Dorf said, “Ultimately everybody probably thinks this is fine. You’ve got a public servant who is also serving his country.”

Following regulations

Heck’s camp notes that his Army Reserve experience and his desire to continue to serve as a commander will help him make better informed decisions as has been the case in his dual roles as one of Nevada’s representatives in the House.

“The boss requires that we keep a bright line of demarcation between his official duties and his military service,” Heck spokesman Greg Lemon wrote in an Aug. 21 email. “He operates within Army and DoD (Department of Defense) regulations and policies government political activities by members of the Reserve, just as he has done since 2005 when serving in the State Senate.”

Lemon said that Heck “has faithfully served his constituents as a member of the Congress and the nation” as an Army Reserve soldier. “He has maintained both positions without conflict and this will not change in the Senate.”

At a recent Las Vegas Metro Chamber of Commerce breakfast, Heck was asked if he would continue to serve in the military if elected to the Senate.

“That’s the plan,” he said.

He noted that he would follow the same course as he has done since he was elected in 2010 to represent Nevada’s 3rd Congressional District.

Heck, a member of the House Armed Services Committee and Permanent Select Committee on Intelligence, said he would recuse himself on voting for any promotions in his military rank, regardless of what the Senate Ethics Committee might allow.

“We have talked with the House committee — the Ethics Committee,” he said. “Obviously, we’d have to wait to see what the Senate committee would say. There may be instructions from them on how to tackle those issues, but it would not interfere with my ability to serve in the military or to serve in the Senate.”

ACLU urges transparency

Tod Story, executive director of the American Civil Liberties Union of Nevada, said it is incumbent upon Heck to “err on the side of transparency” when it comes to potential conflicts of interest when voting in the House or U.S. Senate, if elected.

“It depends on whether or not he’s providing oversight. If it poses a conflict, he should disclose that and recuse himself if there is a conflict,” Story said.

Examples of potential conflicts of interest include military pay scale issues and travel benefits. But Story said voting on military facilities funding or capital improvements to bases, installations or equipment in his district or elsewhere wouldn’t be viewed as a conflict.

“That’s not going to his benefit. That’s to the military’s benefit,” Story said.

Heck, an emergency room physician and flight surgeon, received his commission as an officer in the Army Reserve Medical Corps in 1991. He is currently deputy commanding general of the Army Reserve’s 3rd Medical Command in Atlanta.

As an Army Reserve colonel, he deployed to Iraq in 2007 for a three-month tour, declining to accept a commander’s deferment at the time because he was in command of the Reserve’s 6252nd Army Hospital in San Diego.

“But my number came up,” he told the Review-Journal before heading to Iraq. “I had given my word I would go on the next rotation. … This is what you train for. Nobody wants to go to a combat zone, but there are dedicated men and women who put their lives on the line every day to protect our freedoms.”

Among his Army Reserve assignments, Heck was chief of emergency services for the 2290th Army Hospital in Washington, D.C. He sometimes would volunteer to help with his emergency room skills at Walter Reed Army Medical Center.

When asked if he still volunteers at the center, he said, “Since assuming my new position, I no longer maintain my staff privileges” there.

Heck is not blazing a trail with his dual roles as an elected official and military reserve officer in Congress.

The late-Sen. Barry Goldwater, R-Ariz., a World War II and Korean War veteran, was an Air Force Reserve major general while he served in the U.S. Senate.

Sen. Lindsey Graham, R-S.C., formerly an Air Force Reserve colonel, retired in June from his reserve duties. He had been a reservist since leaving active duty in 1989.

Contact Keith Rogers at krogers@reviewjournal.com or 702-383-0308. Find him on Twitter: @KeithRogers2. Contact Ben Botkin at bbotkin@reviewjournal.com or 702-387-2904. Find him on Twitter: @BenBotkin1.