Progressives such as those at the Daily Kos are arguing that it would have been just fine to for the IRS to investigate all groups critical of the government, as opposed to just conservative groups personally critical of President Obama in particular. Thus, if the IRS is proven to also have investigated left-wing critics of President Obama, or critics of GOP officials, as well, then it did nothing wrong, since it was not engaged in viewpoint discrimination in violation of the First Amendment. Under this logic, it would have been okay for the government to harass critics of wars that were supported by both political parties (like the Vietnam War and the War in Iraq, which initially had bipartisan support, and World War I, which had bipartisan support from start to finish).
This argument shows a real ignorance of the First Amendment, in assuming that when powerful officials harass dissidents, that is just fine as long as they harass both conservative and non-conservative dissidents at the same time. The Supreme Court has rejected this pinched view of the First Amendment in Rosenberger v. Rector and Visitors of the University of Virginia (1995), which said that suppressing multiple opposing viewpoints rather than just one is just as unconstitutional. The Supreme Court first noted that “viewpoint discrimination” is “an egregious form of content discrimination,” and thus is forbidden even in areas (like government funding and tax exemptions) where content discrimination is sometimes permitted. Then it rejected the argument more recently made by at the Daily Kos:
The dissent’s assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar . . . Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. . .The dissent’s declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.
The Daily Kos blog takes the position debunked by the Supreme Court. It argues that the IRS investigation of groups that applied for 501(c)(4) status was just fine assuming it wasn’t limited to Tea Party groups, but also covered other groups (The IRS also investigated groups that “criticized how the country is being run” — including groups that opposed deficit spending — or taught about the Constitution). A Daily Kos author says that “what . . we do know of” the investigation was that it involved a “focus on nonprofit applications critical of the government, not the president—and again, the apparent goal was to filter out primarily political groups in an application process that was supposed to specifically disqualify, by law, political groups. The ‘scandal’ part of the ‘scandal’ would be that certain groups were targeted by name, e.g. ‘Tea Party,’ which would focus on one certain narrow part of the political spectrum. That apparently political groups were targeted for extra scrutiny when seeking nonprofit status, however, is exactly what was supposed to happen.”
So in his view, it’s fine for the government to harass its critics, while leaving water carriers for the Obama administration (like the DailyKos) alone, as long as the government harasses not just the Tea Party but also left-leaning, moderate, or libertarian critics of the Obama administration’s policies and its civil-liberties violations. (Glenn Greenwald, and former ACLU Board Members Wendy Kaminer and Harvey Silverglate being examples of non-conservative critics of the Obama administration and its repeated violations of basic civil liberties, see here and here, for example.)