EDITOR'S NOTE: On June 17, 2010, we rated the statement by Sen. Jim DeMint, R-S.C., that "94 percent of the bills that pass the Senate have no debate, no vote, no amendments, no reading of the bill, no online disclosure, and very often no score from the Congressional Budget office." We said that the actual percentage was 27.9 and called it a Pants on Fire. (We've archived our original item here.) We soon received a number of letters from readers critical of the math we had used to come up with the percentage. We also received criticism from DeMint's office, for our math as well as for other issues. As a result, we decided to assign a new reporter to the item in order to take a fresh look. Below is our new analysis.



On May 26, 2010, Sen. Jim DeMint, a Republican from South Carolina, posted a video of one of his speeches on YouTube. Speaking about legislative openness, DeMint said that Congress is plagued with secrecy and lack of debate on important issues: "At this point in the Senate, 94 percent of all the bills are passed unanimous consent -- 94 percent. So this is hardly a lack of productivity. And what this means is 94 percent of the bills that pass the Senate have no debate, no vote, no amendments, no reading of the bill, no online disclosure, and very often no score from the Congressional Budget office."



DeMint's number seemed high to us, so we decided to investigate. We see two broad areas to analyze. One is whether the percentage DeMint cites is accurate. The other is whether DeMint's percentage says anything valuable about how the Senate handles legislation.



We asked DeMint's office for the source of his claim and were told it comes from a July 2008 report from the Congressional Research Service, the nonpartisan research arm for Congress. The report, which DeMint's office had originally asked CRS to prepare, notes that as of June 30, 2008, the Senate had passed 911 measures of various kinds during the 110th Congress.



Of these measures, 855 were passed via unanimous consent -- an expedited process by which bills are passed unless a senator objects. This is the source of DeMint's 94 percent figure -- 855 bills passed by unanimous consent out of 911 total measures taken up.



DeMint in his speech referred to all of these measures as "bills." But the CRS report broke them down more precisely. Some were formal bills or joint resolutions, both of which are binding. Others were simple resolutions or concurrent resolutions, which do not have the force of a law and do not require the president's signature.



Of the 911 total measures, only 376 were legally binding bills and joint resolutions, according to the CRS report. The rest were simple and concurrent resolutions. Occasionally these non-binding resolutions inspire some controversy, but a look through the full list provided by CRS confirms that the vast majority are ceremonial or symbolic in nature. An example is a resolution "congratulating Charles County, Maryland, on the occasion of its 350th anniversary." Others from the CRS report include:

• A resolution commending the University of Nebraska-Lincoln women's volleyball team for winning the National Collegiate Athletic Association Division I Women's Volleyball Championship.

• A concurrent resolution honoring the memory of Napa Valley winemaker Robert Mondavi.

• A concurrent resolution authorizing the use of the Capitol Grounds for the District of Columbia Special Olympics Law Enforcement Torch Run.



In making his calculation, the senator decided to include all measures, regardless of whether they were binding. But there's another way to do it: Remove from the calculation the measures that most people would agree don't require debate.

DeMint spokesman Wesley Denton argues that DeMint was on solid ground calculating the numbers his way.



"Nowhere in DeMint’s speech does he ever say that all 94 percent of these bills are controversial, or that all 94 percent need a roll call vote," Denton said. "DeMint is criticizing the process, not every bill passed by that flawed process. So to try to whittle down the number by focusing on only the bills PolitiFact finds controversial is a disingenuous attempt to discredit DeMint’s factual statement."



We disagree. We think the fairer test is to focus on the bills that include some element of substance that demands debate.



Doing it DeMint's way, in our view, essentially stacks the deck by enlarging the pool of undebated measures to include simple and concurrent resolutions. The CRS report does not consider them bills, and no one seriously expects the Senate to spend time debating the merits of whether to honor a college volleyball team or to praise the life of a late vintner through non-binding resolutions. So why should we pretend that all 911 measures deserve official debate -- which is what would be required to produce the 94 percent figure DeMint cites?



We'll take the alternate approach. We started with the 376 legally binding measures (that is, the bills and joint resolutions). Then we looked closer.



Of the 376, 88 were naming bills for U.S. Postal Service facilities -- legislation that, while legally binding, is almost always non-controversial and treated as pro-forma business by the House and the Senate. According to CRS, all of the naming bills passed by unanimous consent. Because these bills are not the kinds of measures requiring substantive debate, we'll subtract them.



That gets us down to 288 bills. Another 30 passed by unanimous consent re-named a federal building, park, office or highway after someone -- another common category of bill that rarely if ever inspires debate. And four additional bills that were passed by unanimous consent addressed what seem to be non-controversial issues involving U.S. coins.



That leaves 254 bills. We could scrutinize the CRS list for other non-controversial bills passed by unanimous consent, but we'll stop there; once you get beyond common categories like building namings, it gets tricky to determine whether a bill addresses a major, debatable issue just by its title, which is all that CRS lists.



So, stopping here would define our universe of legally binding, non-naming, non-coinage bills at 254.



The CRS study says (and DeMint's original math concurs) that 46 roll call votes and three voice votes were subject to debate in the chamber. If you subtract these 49 bills from the total number of non-trivial, binding bills (254), you get 206 bills passed by unanimous consent.



We now have a couple ways to crunch the numbers. One is to say that 81 percent of non-trivial, binding bills (206 out of 254) were passed by unanimous consent. Alternately, you could separate out the 64 binding resolutions that CRS said were passed by unanimous consent but which received some debate. Doing this would mean that 56 percent of non-trivial, binding bills, received absolutely no debate. (DeMint's office argues that the "debate" on these bills cited by CRS was cursory and thus shouldn't be counted as debate.)



Either figure would be lower than what DeMint said on the floor, and one of the percentages is quite a bit lower. They're also higher than the 27.9 percent we had in our previous article, which we now acknowledge is incorrect.



However, we think what's wrong with DeMint's statement is actually broader than the arithmetic. We arrived at the percentages above after first excluding as ceremonial or symbolic 657 measures the senator had counted. These largely non-substantive measures that DeMint included accounted for more than 70 percent of the measures he used in his calculation. This significantly skews the picture of what kinds of measures were taken up in the Senate.



As any veteran Congress-watcher can tell you, the Senate, with its byzantine rules and back-room wheeling-dealing, can be a maddening institution. DeMint's call for reforming procedures and increasing openness likely has merit. His bipartisan efforts with Sens. Tom Coburn, R-Okla., and Claire McCaskill, D-Mo., to ensure that legislation is disclosed and easily reviewable online prior to passage, and that it be pre-scrutinized for conflicts of interest and budgetary impact, among other things, are the kinds of goals that should be able to garner broad, bipartisan support. At the very least, one can question the wisdom of spending taxpayer money to pass hundreds of symbolic resolutions every two years, rather than debating the great issues at stake.



Indeed, those unfamiliar with Senate procedures might be shocked to learn that even 56 percent of legally binding bills passed the chamber without debate. But DeMint wasn't content to limit himself to such evidence. In making his point, he ran up the score.



Ultimately, we find that DeMint's goals, laudable though they may be, are undercut -- not strengthened -- by the math he chose to present in his floor speech. We'll own up to our own mathematical error, but we stand by our overall judgment from the initial article: Pants on Fire!