“Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

— First Amendment, Constitution of the United States of America

“In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus.”

— Justice Scalia, McConnell v. Federal Election Commission, dissenting.

It must have been just one of those coincidences that the same day the Supreme Court gave its imprimatur to the McCain-Feingold restrictions on soft money contributions to political parties and regulation of political advertising, the news came in of the latest public opinion poll, which showed that President Bush, master of the hard-money game, would beat any Democrat so far on the field. For by and large it was the Democrats who were the driving force in this “reform.” It’s going to be something to behold as they try to live with the results.

The decision — concurred in by five Justices, Stevens, O’Connor, Souter, Ginsburg, Breyer — was based on the fuzziest notions of furthering Congress’s “steady improvement of the national election laws” and making sure that our political system avoids the “appearance of corruption.” It erodes the protection of political speech in this country more than any other individual or group has done in America’s history.

Justice Scalia, in dissent, reckons it is no small matter to place the restrictions on money in politics that the Congress passed and the court has now declared to be constitutional. The court had already started down the wrong road in its 1976 decision in Buckley v. Valeo, where it decided that political contributions and advertisements could be regulated. Now, there is virtually no area of politics that the Congress couldn’t plausibly legislate.

“Is it accidental, do you think, that incumbents raise about three times as much ‘hard money’ — the sort of funding generally not restricted by this legislation — as do their challengers?” Justice Scalia asked. “And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents?” And thus it was no stretch for President Bush, champion hard-money fund-raiser, to sign onto a bill that, while unconstitutional in our view, would have little effect on his own re-election campaign.

Justice Scalia thinks he discerns the Congress’s true motives in its restrictions on political advertising. “Let us not be deceived,” he wrote. “While the Government’s briefs and arguments before this Court focused on the horrible ‘appearance of corruption,’ the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to ‘crack cocaine.'” There’s nothing politicians hate so much, it would seem, as being “attacked” — or, as some might call it, criticized. Said Senator Boxer in the floor debate to which Justice Scalia referred: “These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal.”

At least in Buckley, the court recognized that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. While many have decried the notion that “money is speech,” he notes, there is no other way to parse the matter. Speech — at least meaningful political speech, such as printing leaflets, running broadcast and print advertisements, or holding rallies — costs money. Restricting the donation of money to political parties and campaigns must be seen as a violation of the freedom of speech. And the restrictions on advertisements 60 days before an election is different from the Sedition Act of 1798 in little more than degree.

The Republicans, at least some of them, went along with the “reforms” of our campaign system. But it was the Democrats pushing them the hardest. The poll released yesterday showed Mr. Bush, who sits atop a massive hard-money war chest, trouncing all Democratic challengers. Without soft money coming into the national party, or Democratic interests able to launch a coordinated ad war, the challenge of unseating an incumbent president looks all the tougher. Perhaps some Democratic-aligned groups could take the tack that the National Rifle Association is pursuing: buying a television or radio station and operating it like other corporations do, exempt from the campaign-finance laws.

It’s an exemption that is near and dear to the hearts of the major print and broadcast outlets that have plumped for this sort of legislation for years. But if the exemption starts to look to Congress like a “loophole” to be closed, who knows where the next phase of “campaign-finance reform” may lead us. If the corporations and interest groups don’t have an unrestricted right to criticize politicians, why should us cogs in the press be exempt from control?