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MEMORANDUM Subject: From

:

May 28, 2013

Days Between Offering of a Motion to Proceed and Its Disposition in the 112th Congress Elizabeth Rybicki, Specialist on Congress and the Legislative Process, 202-707-0644, erybicki@crs.loc.gov

This memorandum was prepared to enable distribution to more than one congressional office.

This memorandum responds to congressional requests concerning how long it takes the Senate to decide whether to take up a measure for consideration on the floor. After explaining how current procedures do not provide a means for a simple majority of Senators to take up a bill at a time of their choosing, the memorandum then presents data on the number of days between the day a motion to proceed to consider a measure was offered and the day the Senate took some dispositive action on the motion. The only motions to proceed examined were those in the 112th Congress on which cloture was filed. To summarize the findings presented in more detail below, on measures the Senate took up after filing cloture on the motion to proceed, an average of 5.03 days of Senate session occurred between the day the motion was made and the day the bill was taken up. If the count of days is limited to days during the course of which the motion to proceed was formally pending before the Senate, the average was 3.59 days. On such measures that the Senate chose not to consider in the 112th Congress, an average of 3.14 days of Senate session (and 2.50 days during which the motion was pending) occurred between when the motion to proceed was made and some other action was taken ending floor consideration of the motion. Counts are inclusive of the day the motion to proceed was made and the day considered to be the day of disposition.

Background
Most measures considered on the floor are brought before the Senate by unanimous consent. If all Senators will not consent to take up a measure, then the only other way to take it up, under current procedures and practice, is for the Senate to agree to a motion to proceed to its consideration. In the 112th Congress, the Majority Leader of the Senate expressed frustration regarding the length of time the Senate spends considering motions to proceed. 1 With the exception of a few privileged matters, 2 motions to
Congressional Record, daily edition, vol. 158 (July 18, 2012), p. S5094. Measures that are privileged for consideration in the Senate include, for example, budget resolutions and budget reconciliation bills (pursuant to the Congressional Budget Act of 1974, as amended (2 U.S.C. 621 et seq.)).
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proceed to the consideration of bills and resolutions generally are debatable, and are therefore subject to filibuster. Under Senate procedures, the Senate can reach a vote on a debatable motion to proceed to consider a measure only: 1) when no Senator seeks recognition to debate it; 2) pursuant to a unanimous consent agreement; or 3) if cloture is invoked on the motion to proceed. As a result, in the absence of agreement among all one hundred Senators to take up a bill, the Senate almost always begins consideration of measures through a cloture process on the motion to proceed. Invoking cloture on the motion to proceed requires the support of three-fifths of the Senate (60 Senators assuming no more than one vacancy) and potentially several days of session. 3 More specifically, the procedural steps pursuant to Senate Rule XXII (the cloture rule) are: 4 • • • • • A Senator, most often the Majority Leader, makes a motion to proceed to consider a measure. A Senator, most often the Majority Leader, files a cloture motion signed by 16 Senators proposing that debate be closed on the motion to proceed. Two days of session later, the Senate votes on the cloture motion. If three-fifths of the Senate agree to invoke cloture on the motion to proceed, there will be a maximum of 30 additional hours of consideration of the motion to proceed. A maximum of 30 session hours later, the Senate votes on the motion to proceed, which can be approved by a majority of Senators present and voting, a quorum being present.

How long it takes for the Senate to agree to take up a measure after the Leader has offered a motion to proceed depends on several factors. First, cloture might not be filed the same day that the motion to proceed is made, although a same day cloture motion was generally the practice in the 112th Congress. Second, because the vote on cloture will not occur until the second day the Senate meets after it is filed, the number of calendar days that pass depends on whether or not the Senate is meeting on those days. It is also fairly common for the Senate to modify the day or time of a cloture vote by unanimous consent. Third, when cloture is invoked, Senators typically do not consume 30 hours of floor session discussing the motion to proceed, but instead reach a unanimous consent agreement regarding or affecting when the bill will be taken up. 5 In the 112th Congress, it was most often the case that if cloture was invoked, the bill was taken up on the following session day, perhaps reflecting the leverage opponents have in negotiations when, under the rules, a maximum of 30 hours of debate could have been consumed on the question.

3 In the 113th Congress, the Senate amended Rule XXII to provide an expedited method by which three-fifths of the Senate can end debate on the question of taking up a bill (or other matter) on the initiative of both party leaders and a bipartisan group of 14 other Senators. More specifically, a cloture motion on a motion to proceed, signed by the two floor leaders as well as at least seven Senators from each party, will mature in one session day, instead of two. If such a cloture motion is successful, then the motion to proceed will not be subject to further debate, instead of being subject to a maximum of 30 hours of post-cloture consideration. See S.Res. 16, 113th Congress and CRS Report R42996, Changes to Senate Procedures in the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16), by Elizabeth Rybicki. 4 For more information, see CRS Report RL30360, Filibusters and Cloture in the Senate, by Richard S. Beth and Valerie Heitshusen. 5 Sometimes, for example, there is a unanimous consent agreement that provides that all time during morning business, adjournment, and recess count postcloture on the motion to proceed.

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Method
To address the question of how long it takes the Senate to decide to take up a measure for consideration, excluding those measures that are initially taken up (and sometimes even quickly approved) by unanimous consent, the Legislative Information System (LIS) was used to identify all measures on which cloture was filed on motions to proceed to their consideration. These measures are listed in Table 2. A measure was included regardless of subsequent action on the cloture motion or on the motion to proceed. For example, if cloture was filed on a motion to proceed to a measure, and the measure was eventually taken up by unanimous consent, the measure is still included. Similarly, if cloture was filed on a motion to proceed to a measure, and that cloture motion was later withdrawn by unanimous consent, the measure is still included in the list. These measures were included because the goal was to examine all measures proposed to be taken up before the Senate had completed negotiations for a unanimous consent agreement. After the Majority Leader makes a motion to proceed, it is common for Senators to negotiate about the measure, and the results of those negotiations might lead to a unanimous consent agreement providing for something other than direct disposition of the motion to proceed. The research aimed in part to measure how long such negotiations concerning the floor agenda typically take, regardless of the specific procedural steps eventually taken to bring up a bill. 6 For each of the measures identified, the third column of Table 2 presents the date the first motion to proceed to consider it was made, according to the LIS. If the Senate eventually took up the bill, either by agreeing to a motion to proceed or pursuant to a unanimous consent agreement, that date is presented in the fourth column. If, however, the Senate did not take up the measure in the 112th Congress, one of the following dates is presented in the fifth column as a date of disposition for the motion to proceed: the date cloture on the motion to proceed failed (8 instances); the date the motion to proceed failed because it did not receive 60 votes in the affirmative pursuant to a unanimous consent agreement (3 instances); the date cloture on the motion to proceed was withdrawn (2 instances); the date the motion to proceed was tabled (1 instance). Finally, Table 2 presents two different counts of days between the day the motion to proceed was made and the day the Senate reached some decision in relation to the motion to proceed. The counts include both the day the motion to proceed was made and the date of disposition. In other words, if the motion to proceed was made on a Monday, and agreed to the following Thursday, the number of days in between would be four: Monday, Tuesday, Wednesday, and Thursday. Using this method, both “days of session” and “days of consideration according to the LIS” are presented in Table 2. “Days of session,” presented in the sixth column, is the number of calendar days the Senate met. A day of session was counted even if it was day the Senate briefly met but conducted no business (often called a pro forma session). Note that under this definition a day would be counted regardless of
Motions to proceed that were offered but on which cloture was not filed are not included in the analysis. Excluding motions to proceed to privileged matters, an additional ten motions to proceed to measures were made in the 112th Congress (according to a search of “motion to proceed” in “Words from Full Text” for measures coded as receiving Senate floor consideration in the LIS). Four of these motions were made only after unanimous consent agreements were entered into providing for their disposition. All four were rejected after failing to receive 60 votes pursuant to the agreement. A fifth motion to proceed was tabled. In a sixth instance, a motion to proceed was made and the bill was taken up by unanimous consent. Two more motions to proceed were made, but no further action was taken. Only two bills were taken up by a motion to proceed on which cloture was not filed, S. 1925, the Violence Against Women Reauthorization Act and S. 3254, the National Defense Authorization Act for Fiscal Year 2013. The first motion to proceed to S. 1925 was made on April 17, 2012, and the bill was taken up by unanimous consent April 25, 2012, after six session days and four days of consideration. The first motion to proceed to S. 3254 was made on November 13, 2012, and the bill was taken up by a motion to proceed agreed to by voice vote on November 28, after seven session days and six days of consideration.
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whether or not the motion to proceed was formally pending before the Senate on that day and regardless of whether or not any Senator discussed the motion to proceed or the measure in relation to which it was made. “Days of consideration,” in contrast, is a count of the number of days under the LIS “Bill Status” section with the statement, “motion to proceed considered.” This LIS entry presumably reflects days on which the motion to proceed was formally pending, at least for some time, before the Senate. A motion to proceed can be considered as formally pending before the Senate if it has been made (or brought before the Senate when cloture was invoked on it) and no dispositive action has occurred. Dispositive action could be a vote on the motion to proceed, but motions to proceed are also often withdrawn 7 and, importantly, die when the Senate adjourns. 8 Because the Senate typically adjourns at the end of a calendar day, for a motion to proceed to be formally pending on consecutive calendar days it must be moved multiple times. As in the case of session days, a day was counted as a day of consideration regardless of whether or not any Senator spoke directly on the motion to proceed or on the measure in relation to which it was made. The difference between the counts of “days of session” and “days of consideration” is probably best explained through the use of two examples, one in which the two day counts are different and one in which the two day counts are identical. As shown in Table 2, there were four “days of session” and two “days of consideration” between the day the motion to proceed to H.R. 1 was made and the day the bill was taken up. A motion to proceed to H.R. 1 was made on March 4, 2011. The Majority Leader filed cloture on the motion to proceed, and then withdrew the motion to proceed. The measure was laid before the Senate by unanimous consent on March 9, 2011. The count of “days of consideration” is just two, because the count is inclusive of the day the motion to proceed was made and the day the bill was taken up. The count of “days of session” is four, because in addition to March 4 and 9, the Senate met on March 7 and 8. In another example shown in Table 2, there were three “days of session” and three “days of consideration” from the day the motion to proceed to S.493 was made through the day the bill was taken up. In this case, the Majority Leader moved to proceed to the bill, filed cloture on the motion to proceed, and withdrew the motion to proceed on March 10, 2011. On March 14, cloture was invoked on the motion to proceed, which formally brought the motion to proceed before the Senate, although after the cloture vote the Senate arranged by unanimous consent for Senators to speak on topics of their choice for up to 10 minutes each. The Senate, pursuant to a unanimous consent agreement, took up the bill on March 15. The count of “days of consideration” is three, because in addition to March 10 and March 15, the motion to proceed was formally pending on March 14 after cloture was invoked, even though the motion to proceed was not discussed. No other days of session occurred between March 10 and March 15, so the number of “days of session” is also three. In summary, the table presents both (1) days of session that occurred from the day a motion to proceed was made through the day it was disposed of, and (2) the number of days on which a motion to proceed
7 Withdrawing a motion to proceed after filing cloture on it is a fairly common practice in the modern Senate. Withdrawing the motion allows the Senate to take up other business while the cloture motion matures; some actions, such as a motion to proceed to another matter, cannot be taken while a motion to proceed is pending. If cloture is invoked, it would bring the motion to proceed back before the Senate. For information on the increase in the practice of filing cloture on the motion to proceed that began in the 101st Congress, and the practice of withdrawing the motion to proceed, see Richard S. Beth, Valerie Heitshusen, Bill Heniff Jr. and Elizabeth Rybicki, Leadership Tools for Managing the U.S. Senate, American Political Science Association Annual Meeting, Toronto, Canada, September 3-6, 2009, pp. 4-6. 8 U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practices, S.Doc. 101-28, 101st Cong., 2nd sess., by Floyd M. Riddick, Parliamentarian Emeritus, and Alan S. Frumin, Parliamentarian, rev. and ed. by Alan S. Frumin (Washington: GPO, 1992), p. 657.

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was formally pending before the Senate from the day the motion was made through the day it was disposed of. No information is provided regarding the time spent discussing the motion to proceed, or even the length of time the motion to proceed was formally pending before the Senate. It therefore would likely not be appropriate to add all the days together in the table to present a total number of days the Senate spent considering motions to proceed. In some instances, as is evident from the table, this would result in the double-counting of calendar days. In addition, presenting such a total could give the impression that the motions to proceed were discussed for the amount of time represented by that day count. In fact, a day was counted even if the motion was just briefly pending (or, for the session day count, not even formally pending at all) on that day. To measure the actual floor time spent debating motions to proceed would be very difficult and might not be considered relevant to the question about how long it takes for the Senate to decide to take up a bill. The frustration expressed by the current Majority Leader (and others before him) appears to be with the length of time required to get to a vote on the question of taking up a bill, an amount reflected in the data presented as an average of 5.03 session days between a motion to proceed being made and the bill being taken up in the 112th Congress.

Results
The results of the above research method are presented in Table 2 and summarized in Table 1. Cloture was filed in relation to a motion to proceed to 43 measures in the 112th Congress. The Senate agreed to take up 29 of these measures, or 67%, and did not take up the other 14. Overall, the average number of session days between when a motion to proceed was made and when it was disposed of in some fashion was 4.42 days. Overall, the average number of days of consideration according to the LIS was 3.23. A statistical average, particularly of only 43 cases, can be heavily influenced by one or two instances that are much higher or lower than the mean. The number of days between making the motion to proceed and taking up three bills, H.R. 1249, S. 2343, and S. 3525, were 12 session days, 13 session days, and 17 session days, respectively. The mode, a different statistic that is the day count that occurred most frequently in the data set, was 3 session days. The process for measures that the Senate eventually takes up through a cloture process is typically longer than the process when cloture fails, and for this reason it may be useful to examine the data for measures taken up and measures not taken up separately. As stated above, on the measures the Senate agreed to take up, an average of 5.03 session days and 3.59 days of consideration occurred between when the motion was made and the bill was taken up. (The mode was 4 session days and 3 days of consideration.) On the measures the Senate did not take up, an average of 3.14 days of Senate session (and 2.50 days of consideration) occurred between when the motion to proceed was made and some other action was taken removing the motion from the floor. (The mode was 3 session days and 2 days of consideration.) The approximate difference of a day between bills taken up and those not taken up reflects, at least in part, that when cloture was invoked on the motion to proceed in the 112th Congress, the measure was typically taken up the day after the cloture vote, and it is that day that is counted as the day of disposition. If cloture was not invoked, the day of the (failed) cloture vote is instead typically considered the day of disposition. The difference is also due in part to the inclusion of the three outliers discussed above, when there were 12, 13, and 17 session days, respectively, between moving to proceed and taking up H.R. 1249 S. 2343, and S. 3525.

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Table 1. Average Number of Days Between Moving to Proceed to a Measure and a Decision Regarding Whether to Proceed to It
112th Congress
Measures in Relation to Which Cloture Was Filed on a Motion to Proceed Measures Taken Up Measures Not Taken Up All Measures Number of Measures in Relation to Which Cloture Was Filed on a Motion to Proceed 29 14 43 Average Number of Days of Session Between Motion to Proceed Made and Measure Taken Up 5.03 3.14 4.42 Average Number of Days of Consideration Between Motion to Proceed and Measure Taken Up 3.59 2.50 3.23

Source: Averages calculated from data presented in Table 2, which were collected from the Legislative Information System. Notes: A “day of session” is a calendar day on which the Senate met, and a “day of consideration” is a day that the Legislative Information System identified under the “Bill Status” of the measure as one during the course of which the motion to proceed was considered. Both the day the motion to proceed was made and the day considered to be the day of disposition are included in the day counts.

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Table 2. Measures in Relation to Which Cloture Was Filed on a Motion to Proceed, 112th Congress
Number of Days Between Moving to Proceed (MTP) to a Measure and a Decision Regarding Whether to Proceed to It
Date measure taken up Date cloture failed on MTP (or other action) Number of session daysa Number of days of considerationb

Bill No.

Bill Title

Date MTP made

H.R. 359

H.R. 1

S. 493

S. 1038

S. 782 S. 679 S.J.Res. 20 S. 1323

H.R. 2055

H.R. 1249 H.J.Res. 66

To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions. Making appropriations for the Department of Defense and the other departments and agencies of the Government for the fiscal year ending September 30, 2011, and for other purposes. A bill to reauthorize and improve the SBIR and STTR programs, and for other purposes. A bill to extend the expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 2015, and for other purposes. A bill to amend the Public Works and Economic Development Act of 1965 to reauthorize that Act, and for other purposes. A bill to reduce the number of executive positions subject to Senate confirmation. A joint resolution authorizing the limited use of the United States Armed Forces in support of the NATO mission in Libya. A bill to express the sense of the Senate on shared sacrifice in resolving the budget deficit. Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2012, and for other purposes. To amend title 35, United States Code, to provide for patent reform. Approving the renewal of import restrictions contained in the Burmese Freedom and Democracy Act of 2003.

2/28/2011

---

3/1/2011

2

2

3/4/2011

3/9/2011

---

4

2

3/10/2011

3/15/2011

--5/24/2011c

3

3

5/19/2011

---

3

3

6/6/2011 6/16/2011 6/30/2011 7/5/2011

6/7/2011 6/22/2011 --7/11/2011

----7/5/2011d ---

2 4 3 4

2 2 2 4

7/11/2011

7/14/2011

---

4

3

8/2/2011 9/9/2011

9/7/2011 9/14/2011

-----

12 4

3 4

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Bill No.

Bill Title

Date MTP made

Date measure taken up

Date cloture failed on MTP (or other action)

Number of session daysa

Number of days of considerationb

H.R. 2832 S. 1619

S. 1660

S. 1723 S. 1726 S. 1769 H.R. 674

H.R. 2354

S. 1917

S. 1944 H.R. 3630 S. 968

S. 2038

To extend the Generalized System of Preferences, and for other purposes. A bill to provide for identification of misaligned currency, require action to correct the misalignment, and for other purposes. A bill to provide tax relief for American workers and businesses, to put workers back on the job while rebuilding and modernizing America, and to provide pathways back to work for Americans looking for jobs. A bill to provide for teacher and first responder stabilization. A bill to repeal the imposition of withholding on certain payments made to vendors by government entities. A bill to put workers back on the job while rebuilding and modernizing America. To amend the Internal Revenue Code of 1986 to repeal the imposition of 3 percent withholding on certain payments made to vendors by government entities. Making appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2012, and for other purposes. A bill to create jobs by providing payroll tax relief for middle class families and businesses, and for other purposes. A bill to create jobs by providing payroll tax relief for middle class families and businesses, and for other purposes. To provide incentives for the creation of jobs, and for other purposes. A bill to prevent online threats to economic creativity and theft of intellectual property, and for other purposes. An original bill to prohibit Members of Congress and employees of Congress from using nonpublic information derived from their official positions for personal benefit, and for other purposes.

9/16/2011 9/26/2011

9/20/2011 10/4/2011

-----

3 4

3 4

10/6/2011

---

10/11/2011

3

2

10/19/2011 10/19/2011 11/1/2011 11/3/2011

------11/8/2011

10/20/2011 10/20/2011 11/3/2011e ---

2 2 3 4

2 2 3 3

11/8/2011

11/14/2011

--12/1/2011e 12/8/2011e --1/23/2011f

4

3

11/30/2011

---

2

2

12/7/2011 12/15/2011 12/17/2011

--12/17/2011 ---

2 3 3

2 3 2

1/26/2012

1/31/2012

---

3

3

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Bill No.

Bill Title

Date MTP made

Date measure taken up

Date cloture failed on MTP (or other action)

Number of session daysa

Number of days of considerationb

S. 1813 S. 2204 S. 1789 S. 2230 S. 2343 H.R. 2072

S. 3187

S. 3220

S. 3240 S. 1940

S. 2237 S. 3364

S. 3369

A bill to reauthorize Federal-aid highway and highway safety construction programs, and for other purposes. A bill to eliminate unnecessary tax subsidies and promote renewable energy and energy conservation. A bill to improve, sustain, and transform the United States Postal Service. A bill to reduce the deficit by imposing a minimum effective tax rate for high-income taxpayers. A bill to amend the Higher Education Act of 1965 to extend the reduced interest rate for Federal Direct Stafford Loans, and for other purposes. To reauthorize the Export-Import Bank of the United States, and for other purposes. A bill to amend the Federal Food, Drug, and Cosmetic Act to revise and extend the user-fee programs for prescription drugs and medical devices, to establish user-fee programs for generic drugs and biosimilars, and for other purposes. A bill to amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes. An original bill to reauthorize agricultural programs through 2017, and for other purposes. An original bill to amend the National Flood Insurance Act of 1968, to restore the financial solvency of the flood insurance fund, and for other purposes. A bill to provide a temporary income tax credit for increased payroll and extend bonus depreciation for an additional year, and for other purposes. A bill to provide an incentive for businesses to bring jobs back to America. A bill to amend the Federal Election Campaign Act of 1971 to provide for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities, and for other purposes.

2/7/2012 3/22/2012 3/22/2012 3/27/2012 4/26/2012 5/10/2012

2/9/2012 3/27/2012 4/17/2012 --5/24/2012 5/15/2012

------4/16/2012 -----

3 3 7 4 13 3

2 3 3 4 8 3

5/17/2012

5/23/2012

---

4

4

5/24/2012

---

6/5/2012

6

3

6/5/2012 6/12/2012

6/12/2012 6/25/2012

-----

4 8

4 7

6/25/2012 7/11/2012

7/11/2012 ---

--7/19/2012

8 6

8 4

7/12/2012

---

7/17/2012

3

3

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Bill No.

Bill Title

Date MTP made

Date measure taken up

Date cloture failed on MTP (or other action)

Number of session daysa

Number of days of considerationb

S. 3412 S. 3414 S. 3457 H.J.Res. 117 S. 3525 S. 3637

A bill to amend the Internal Revenue Code of 1986 to provide tax relief to middle-class families. A bill to enhance the security and resiliency of the cyber and communications infrastructure of the United States. Veterans Jobs Corps Act Continuing Appropriations Resolution Sportsmen’s Act of 2012 A bill to temporarily extend the transaction account guarantee program

7/23/2012 7/25/2012 8/1/2012 9/19/2012 9/20/2012 12/6/2012

7/25/2012 7/30/2012 9/12/2012 9/20/2012 11/13/2012 12/11/2012

-------------

3 4 6 2 17 3

3 3 5 2 4 2

Source: Information compiled from the Legislative Information System. Notes: a. b. c. A “day of session” is a calendar day on which the Senate met. Both the day the motion to proceed was made and the day considered to be the day of disposition are included in the day count. A “day of consideration” is a day that the Legislative Information System identified under the “Bill Status” of the measure during the course of which the motion to proceed was considered. Both the day the motion to proceed was made and the day considered to be the day of disposition are included in the day count. The motion to proceed was tabled. Cloture had been invoked on the motion to proceed to the measure, and the following day the Majority Leader moved to table the motion to proceed, explaining that he intended to call up a House amendment (which is privileged) and make a motion to concur with an amendment that was “an extension of the PATRIOT Act” (Congressional Record, daily edition, vol. 157 (May 24, 2011), p. S3262). By unanimous consent, the cloture motion and the motion to proceed were withdrawn as the Senate leadership announced plans to consider other matters (Congressional Record, daily edition, vol. 157 (July 5, 2011), p. S4319). Pursuant to the terms of a unanimous consent agreement, the motion to proceed was rejected after it failed to achieve 60 votes in the affirmative. By unanimous consent, the cloture motion was withdrawn (Congressional Record, daily edition, vol. 158 (Jan. 23, 2012), p. S13.

d. e. f.