For those who value this country’s tradition of free political expression, it can only be hoped that Justices Thomas and Scalia were saving their strength yesterday. How else to explain that the two mustered barely five sentences to dissent from the Supreme Court’s latest surrendering of First Amendment ground to the speech regulators in the case of Federal Election Commission v. Beaumont. Given that the real battle — over the Bipartisan Campaign Finance Reform Act of 2002 — is set for a special session this September, it would seem a reasonable guess. But it is difficult not to be disheartened reading yesterday’s 7-2 decision, penned by Justice Souter, extolling the virtues of restricting speech.

Wrote Justice Souter: “Our cases on campaign finance regulation represent respect for the ‘legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.’…And we have understood that such deference to legislative choice is warranted particularly when Congress regulates campaign contributions, carrying as they do a plain threat to political integrity and a plain warrant to counter the appearance and reality of corruption and the misuse of corporate advantages.”

There are those who will argue that it is nice, if novel, to see the more liberal wing of the Court so concerned with deferring to the legislative branch of government. Quite the opposite was its posture last June when the Court, led by Justice Stevens, ruled unconstitutional the execution of the mentally retarded, despite the will of the state legislatures. But others, ourselves included, reckon that the Legislature’s and the Executive’s tinkering with the manner of their own elections holds more than a slight potential for mischief and requires greater skepticism than legislation on other matters.

That Chief Justice Rehnquist and Justices O’Connor and Kennedy went along with upholding restrictions on contributions by incorporated advocacy groups is enough stir the thought that dual retirements by the chief and Justice O’Connor this summer might not be an unhappy scenario. Justice Kennedy, at the least, seems ready to put up some fight, despite voting with the majority this time around. “Were we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review, I might join Justice Thomas’ opinion,” Justice Kennedy wrote. “The Court does not undertake that comprehensive examination here.”

When that “comprehensive examination” comes, as we hope it will this fall, perhaps these three can persuade their col leagues to turn back the logic of Buckley v. Valeo. It is the case that started us down this road and to which Justice Souter turned for precedent yesterday: “While contributions may result in political expression if spent by a candidate or an association…the transformation of contributions into political debate involves speech by someone other than the contributor.” One can only hope for justices who will be able to see through such circumlocutions and remember the first five words of the First Amendment, “Congress shall make no law…”