Original Truth-O-Meter item on Sen. Jim DeMint's claim that 94 percent of bills get passed by unanimous consent

Editor's Note: This is the original June 17, 2010, Truth-O-Meter item by staff writer Lukas Pleva on Sen. Jim DeMint's claim that 94 percent of bills are passed by unanimous consent. We reviewed our work and published an updated analysis. We are publishing the original item here.

If we had a nickel for every time we heard someone accuse Congress of passing controversial bills in the middle of the night or behind closed doors, PolitiFact would have its headquarters on the sunny beaches of the Bahamas. Unfortunately, our nickel jar remains empty, but the allegations keep coming.

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 suspiciously high, so we decided to investigate.

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 research arm for Congress. The report notes that as of June 30, 2008, the Senate had passed 911 "measures." These measures include bills, joint resolutions, simple resolutions, and concurrent resolutions.

Of these measures, 855 were passed via unanimous consent, which does indeed account for 94 percent of the 911. So, was DeMint correct?

Not even close. We found he ignored key details in the report.

To begin, of the 855 measures, only 327 were legally binding bills and joint resolutions, according to the CRS report. The rest were simple and concurrent resolutions which do not have the force of a law and thus do not require the President's signature. An example is a resolution "congratulating Charles County, Maryland, on the occasion of its 350th anniversary." We wouldn't expect any debate on that one.

That leaves 327 binding measures. Of those, however, the CRS report says 64 were actually passed with debate. We're down to 263. Of those, nine had similar versions in the House that were debated. That leaves 254. Finally, CRS notes that 42 were passed unanimously the same day that they were received, which means that some discussion may have happened, but it would have been very limited. But we'll be generous and let DeMint count the 42 anyway. Still, only 254 bills were passed by the Senate with no debate and no amendments. That's 27.9 percent -- significantly less than the purported 94.

What is even more misleading, however, is Sen. DeMint's implicit suggestion that passing legislation unanimously is some form of a new and deceptive tactic in the Democratic-run Congress. We spoke with Norman Ornstein, a scholar at the conservative American Enterprise Institute, who told us that Congress frequently passes bills and resolutions unanimously. To an extent, it's a time-saving measure, since if Congress had to debate every bill that changes the name of a post office or congratulates a sports team, there would be a lot less time to debate significant issues such as health care or energy. Finally, Senate rules clearly state that if party leaders want to pass a bill unanimously, they must notify every member and give them a chance to debate the proposal.

Don Ritchie, a historian for the Senate, agrees. "It’s not a secret process: all committee hearings and markups are conducted in public and almost everything is published, as are the full texts of the bills," said Richie.

To recap. Jim DeMint claims 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." But if we're speaking strictly about legally-binding "bills," that percentage is actually 27.9. Plus, the experts that we spoke with told us that passing non-controversial bills unanimously is a common practice, is often necessary to get things done, and, most importantly, there is nothing secretive or deceptive about the process.

DeMint's not just wrong, he is playing politics with statistics and has ignored details from the very report that his staff cited. Pants on Fire!

UPDATE: We updated the percentage of bills passed with no debate and no amendments to make the number more precise. We originally had said 27 percent, but it is actually 27.9 percent. The change does not affect our ruling.

Sources for original item:

Sen. Jim DeMint's YouTube Channel, speech video, accessed June 15, 2010.

Congressional Research Service, The "Clearance Process" in the Senate and Measures Approved in the 110th Congress through June 30, 2008, by Elizabeth Rybicki, July 10, 2010.

Email Interview with Norman J. Ornstein, American Enterprise Institute, June 15, 2010.

Email Interview with Donald A. Ritchie, United States Senate Historian, June 15, 2010.