The Senate Ethics Manual advises Senators that at least one congressman in the past has been convicted of fraud under 18 U.S.C. 1001 for using an individual on his congressional payroll to provide services for the congressman's personal business. The ethics manual notes that House members, unlike Senators, must certify every pay period that members of their staff are being paid for actually performed official duties. Lugar spends little time in his Market Street office. It's not clear what, if any, duties any of the employees working there are performing on behalf of Lugar Stock Farm, Inc.
Those same Secretary of State records that list Lugar as the registered agent at his Market Street office also indicate that Lugar is the registered principal for Lugar Stock Farm, Inc. with an address at 7841 Old Dominion Drive in McClain, Virginia, the only home Lugar owns near the nation's capital. Lugar has been taken to task by his Republican primary opponent, Richard Mourdock, because he sold his only home in Indiana more than 35 years ago, leaving him without a physical address to call home in the Hoosier State. The U.S. Constitution requires Senators to be inhabitants of their states when elected. If Lugar maintains no home in Indiana, its hard to argue that he's an inhabitant of the state.
Lugar's campaign has steadfastly defended his right under a state constitutional provision to rely on the home he occupied more than 35 years ago when he was first elected to the Senate in 1976 for purposes of claiming to be an inhabitant of the state and being able to register and vote at his former home. Attorney General Greg Zoeller has backed up a 1982 opinion issued by Linley Pearson to Lugar that says just that. I've contended all along, however, that the state law cannot trump the U.S. Constitution. A constitutional law professor at my alma mater agrees. WIBC reports:
Lugar's campaign says the issue of Lugar's residency has already been addressed following a 1982 opinion from then-Attorney General Linley Pearson which said that Lugar and other members of Congress are residents of Indiana even though they live in Washington D.C. year-round. John Hill, Professor of Constitutional Law at the I-U Robert H. McKinney School of Law, says the U.S. Constitution says Senators must "inhabit" the state they represent.
"What's interesting is unlike the voting requirements, who gets to vote in the state which are governed by state law, these standards are actually governed by federal law so the Attorney General's opinion is not relevant to this particular question," Hill says.
Hill says the Attorney General's opinion was in regard to Lugar's ability to vote in state elections despite not living in the state. He says the law is clear that Lugar can vote in state elections because he is on business for the state in Washington D.C.I'm not in agreement with Professor Hill that Lugar is in the clear for violating the state's voting registration laws. While it is true he cannot be deemed to lose his residence in Indiana because of his absence from the state while serving in the Senate, the law does not excuse him from maintaining any physical address to which he can return to the state and use for purposes such as voting, paying his taxes, registering his motor vehicles, getting a driver's license, etc.; it merely allows him to primarily reside in the nation's capital without losing his residency in Indiana. Every time Lugar fills out an absentee ballot request listing the home he sold more than 35 years ago as his home and casts a ballot using that address, he is arguably committing vote fraud. Interestingly, the U.S. Constitution doesn't even require Lugar to be a registered voter of the state in order to be eligible to represent the state in the Senate.
Sen. Lugar's campaign staff has defended Lugar's lack of a home within the state by pointing to the family farm in Marion County he "co-owns and manages," suggesting the family farm keeps him closely tied to the state. Yet Wright's research of the property tax records in the Marion Co. Treasuer's Office for Lugar Stock Farm, Inc. found that the tax bills for the farm are being mailed to Farmers National Company in Omaha, Nebraska. The website for Farmers National Company describes it as "the fastest growing and most successful farm management company in the United States, managing 5,000 farms, ranches and specialty operations across the country." If the farm is actually being managed by someone other than Lugar, at least it would appear that there is little work, if any, that could be performed at his official Senate offices for the private business. Nonetheless, it shows poor judgment by the six-term incumbent to use his official Senate office as the registered business address for a family-owned business.
Meanwhile, the Indiana Election Commission will hear a complaint filed against Lugar by tea party activists, challenging his eligibility to be a candidate for re-election because he no longer is an inhabitant of the state next Friday. My analysis indicates that the determination of whether he is an inhabitant is made when he is next elected, which would be the November general election should he be re-nominated in the Republican primary for an unprecedented seventh term. Lugar could conceivably cure his constitutional eligibility problem by re-establishing a residence within the state prior to the election. Richard Mourdock called on him to do just that in his press conference earlier this week. Wright has filed a separate complaint against Lugar and his wife with the Elections Commission charging them with committing vote fraud by continuing to cast votes using the Indianapolis home they sold more than 35 years ago. No word on whether the Commission will hear Wright's complaint, which was filed in December of last year.